Reid v. Forsythe

³⁶³ Jones, J., delivered the opinion of the Court. The appeal in this case is from a decree of the Circuit Court for Washington County dissolving a preliminary injunction which had been granted by that Court on the application of the appellant, and dismissing the bill of complaint upon the allegations of which the injunction had been granted. These allegations are as follows: “That a public highway has been established and maintained from time immemorial from the town of Williamsport, Maryland, to high water mark on the south or Virginia side of the Potomac river, at which point, in the normal and natural flow of the water an excellent fording has been afforded all persons travelling over and upon said highway; ” that when the flow of the water is not interfered with by being dammed back the said ford is always passable “and the travelling public has been greatly benefited.and accommodated, and the commercial relations and business between the residents of Maryland and West Virginia aided and enlarged ; ” that the appellant was,at the time of filing the bill of complaint, and had been, for many years before “a traveller over said highway and entitled by law to pass over said stream” by means of said ford ; that the appellees (defendants below) with others were “erecting and attempting to maintain a dam or fish-pot in the river below the fording place, by reason of which the waiter of the aforesaid ford has been and is being more backed up and raised to a considerable height above its normal and natural level ; whereby the aforesaid ford has been interfered with, impeded and rendered useless” and the appellant “and other travellers have been interfered with to the great injury of the public at large ; ” that “in the building and attempted construction of the aforesaid dam the defendants (appellees) have cut timber off the property of the appellant” and committed and were “committing great loss and injury” to his said property; that by the backing up of “the water the bed of the river” had been made to overflow and was overflowing the lands of the appellant “to his damage and injury; ” that the acts complained of “are not susceptible of adequate compensation” to the appellant “and the public in ³⁶⁴ the ordinary course of law and relief can only be had in restraining its continuance through a Court of Chancery.” ' The bill then prays for an injunction to restrain the appellees (defendants below), their servants &c., “from further erecting, maintaining and constructing said dam and fish-pot; from cutting timber from the lands” of the appellant; “and from backing up the water in the river” at the aforesaid fording place; and for general relief. The injunction was granted with leave to defendants to move for its dissolution.

The appellees filed their answer and followed it with a motion to dissolve. The appellant then filed a replication and on the same day an application for leave “to take testimony to sustain his said bill.” Testimony was accordingly taken and the cause was thereafter submitted to the Court below for final hearing; and that Court passed a decree dissolving the injunction which had been granted and dismissing the appellant’s bill. From such decree this appeal was taken. In reviewing here the action of the Court below which is the subject of the appeal we must ascertain from the pleadings the issues presented for its determination; and from the evidence submitted to it the basis of fact upon which its decision was made thereon.

The answer of the appellees admits the existence of the ford described in the bill of complaint, blit denies that it extends to high water mark on the Virginia side of the river; admits that with the river in normal condition the ford is always passable and that it serves the public convenience and benefit as charged in the bill; admits that the appellant is at times a traveller over said ford, but states that the appellees neither admit nor deny that he “is entitled by law to pass over said stream by means of said ford; ” admits that the appellees “did erect a fish-pot at a distance of a mile below the said fording place; ” denies “that by reason of said fish-pot, that the water of the aforesaid ford has been backed up, and raised to either a considerable or any height, above its normal and natural level; ” or “that said ford or the travel thereover has been impeded and rendered, at times, useless by said fish-pot” ³⁶⁵ or that the appellant “and others have been interfered with to the great injury of the public at large; ” denies that the appellees