The language of the law. Part Latin, part Greek, part law French, even part Anglo-Saxon. And all confusing.
Did you ever stop and think about the situation our ancestors faced when they wanted to build a mill and needed to dam a watercourse to provide the water power for it?
In so many cases, they didn’t own the land on the other side of the watercourse from where they wanted to put the mill. That land clearly would be impacted if the dam needed for the mill was erected. And landowners upstream and downstream might be affected too.
But the economic development of the community depended on the development or placement of the mill.
So what did they do?
The answer, at least in the Territory of Nebraska, was the writ of ad quod damnum.
Yeah yeah yeah – – The Legal Genealogist is poking around in statute books again. This time, in the last territorial statutes of the Territory of Nebraska, since I’ll be headed out to Nebraska in just three weeks for the Nebraska State Genealogical Society conference April 27-28 at River’s Edge in Columbus.
Mailed registrations for the conference have to be postmarked by Monday, April 9, and online registrations paid by PayPal should be made by Monday as well. Later registrations should still be accepted but there’s no guarantee that lunch or handout materials will be available.
And this is one conference you don’t want to miss: in addition to my sessions on conflicting evidence, women and the law, immigration, coroners records, and DNA ethics, there are great breakout sessions by other speakers ranging from World War I research to Nebraska digital newspapers and even a demonstration of grave dowsing.
It’s going to be a great conference, and I hope to see you in Columbus, where there are some dams nearby that may originally have been impacted by that problem we began with: what do you do when you want to dam the river and you don’t own the land on the other side from where you want to put the dam?
Nebraska’s territorial statutes provided the answer for early residents of the territory: a legal mechanism for allowing the economic development that was so critical to the territory while compensating the landowners who were hurt by that development.
The writ of ad quod damnum has a long history suggested by its entry in the legal dictionaries: “The name of a writ formerly issuing from the English chancery, commanding the sheriff to make inquiry ‘to what damage’ a specified act, if done, will tend. Ad quod damnum is a writ which ought to be sued before the king grants certain liberties, as a fair, market, or such like, which may be prejudicial to others, and thereby it should be inquired whether it will be a prejudice to grant them, and to whom it will be prejudicial, and what prejudice will come thereby.”1
And that was the mechanism chosen by the Nebraska Territorial Legislature.
The Territorial Statutes provided that anyone who owned the land on one side of a watercourse and wanted to build a dam to power any kind of mill needed to go to the district court and apply for a writ of ad quod damnum.2
The court would then order a proceeding where 24 disinterested freeholders of the county would be selected by the sheriff to appear in the court clerk’s office not less than 10 days later. Both the would-be dam builder and the landowner on the other side would alternately remove one person from the pool until 12 remaining freeholders remained.3
The job of this jury was to look at the land proposed for the dam, set out he metes and bounds of a one-acre zone on the other side for the dam, determine what damage it would cause to the other landowner and to uses like fishing and navigation if it was allowed to be built, and consider whether the damages could be prevented.4
If the mill was found to be publicly useful, the jury then was to assess the amount of the damages which the mill owner would have to pay in order to build the dam,5 and the mill owner would get ownership of the one-acre area on the other side of the watercourse.6
After the mill and dam were built, anybody injured by water overflowing or stagnating because of the dam could also sue out a writ of ad quod damnum and get a one-time damage award for the injury.7
The test for determining whether permission for the dam should be given was set out in section 15:
If … it shall appear on such inquest or other evidence to the court that the mill or appurtenances thereto belonging, or the mansion house of any proprietor, or curtilage, or garden thereunto immediately belonging, will be or has been overflowed or injured, or the health of the neighborhood annoyed, they shall not give leave to build such mill and dam ; but if none of those injuries have accrued nor will likely accrue, they shall proceed to adjudge whether under all the circumstances it be reasonable that such leave be given or not given.8
So there you have it, a straightforward legal system for resolving the problem of the damn dams. And, of course, a system guaranteed to create records — thus warming the cockles of a genealogist’s heart.
And, no, actually… the territorial and early statehood district court files aren’t online.
Guess you’ll have to join me in Nebraska…
Maybe at the Nebraska State Genealogical Society conference…
In three weeks.
C’mon… you know you want to…
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 33, “Ad quod damnum.” ↩
- §1, Chapter 36, “Mills and Mill-Dams,” in E. Estabrook, reviser, The Revised Statutes of the Territory of Nebraska, in Force July 1, 1866 (Omaha: State Printer, 1866), 262-263; digital images, Google Books (http://books.google.com : accessed 5 April 2018). ↩
- Ibid., §2 at 263. ↩
- Ibid., §3 at 263-264. ↩
- Ibid., §4 at 264-265. ↩
- Ibid., §16, at 266. ↩
- Ibid., §§10-11 at 265. ↩
- §15, at 266. ↩