A dam for any gristmill, sawmill, gin, factory or plant to generate electricity by water power to be operated for the public may be erected across any watercourse, not a navigable stream, by the owner in fee of the land on both sides of the stream, or on one side at the place where the dam is proposed to be erected, by proceeding as provided in this chapter.
Ten days' notice must be given to the several owners of such land to show cause, if any they have, against such application, by personal service, if to be found in the county, or if not, by posting up a copy of such notice at a conspicuous place on the several tracts of the owners who cannot be so found.
In all applications under this chapter, any person making affidavit that he is interested against the same and giving security for the costs, if he fails to defeat such application, must, at any time before such application is granted, be permitted to make himself a party and to contest the application.
If on the day appointed to show cause, or any other day to which the matter may be continued, it appears to the court from the inquest or from evidence introduced that the residence of any owner, or the outhouses, inclosures, garden or orchard immediately belonging thereto, will probably be overflowed, or that the health of the neighborhood will probably be endangered, or that any other mill, gin, factory or waterworks will probably be overflowed, the court must not grant the application; but, if such results will not probably ensue, the application must be granted.
If the application is granted, the applicant must, within three months thereafter, pay to the several owners or to the judge of probate for their use, the sums severally assessed, and a failure to make payment within such time operates as a revocation of the grant.
On making such payment, the applicant is vested with a qualified estate in fee to the acre of land located and circumscribed by the jury, such estate to become absolute on performance of the following conditions:
But if the owner of such dam is an infant or person of unsound mind, he is allowed the same length of time, after the removal of such disability, to commence, finish, repair or rebuild.
On failure to comply with the conditions prescribed in Section 18-2-14, the land reverts to its former owner or his heirs.
When such land joins other lands and it is necessary for the erection of the mill, gin or factory to dig a ditch or canal through such other lands, the application must be made to the court of probate of the county in which the lands, through which the ditch or canal is proposed to be dug, lie, and the writ must be obtained, inquest held, notice given, inquest returned, the owners of other lands summoned to show cause, the application granted or refused and damages paid in the same manner as in other cases provided for in this chapter.
An owner or proprietor of any dam erected under this chapter may raise the same on application to the court of probate, and on such application, the same proceedings must be had as on the first application.
Any person who builds or raises a dam or other obstruction across any watercourse, except as authorized by law, and thereby works any injury to any other person, by overflowing his land or in any other way, is liable to such person for double damages for such injury; and he may, if the same is a nuisance to the neighborhood, be prosecuted therefor.
From any assessment of damages made or had under this chapter, the landowner, if dissatisfied, is entitled to an appeal, as matter of right, to the circuit court of the county, and on such an appeal to a trial de novo by jury, such appeal to be taken within 20 days after the application is granted, on giving security for the costs of the appeal, to be approved by the judge of probate. Upon the giving of such security, the judge of probate must file in the office of the clerk of the circuit court a full and complete transcript of all the proceedings, including the inquest of the jury, within 10 days after such appeal is taken.
For authority to erect such dam, application in writing, verified by affidavit, must be made to the probate court of the county in which it is proposed to erect the mill, gin, factory or electric light plant, if by the owner of the land on both sides of the stream or if by the owner of the land on one side only, to the court of probate of the county in which the land on the opposite side of the stream, abutting the proposed site of the dam, lies.
The duties imposed on the sheriff under this chapter may be performed by a deputy.
All gristmills established in pursuance of this chapter are subject to the provisions of this Code touching the order in which grain shall be ground and the rate of toll to be charged for grinding grain at public mills.
Such application must set forth the right of the applicant to make the same, the purpose for which the dam is to be erected, a description of the land by sectional divisions and subdivisions, township and range, the name of the watercourse, if it has a name, the side on which the mill, gin or factory is to be erected and the proposed height of the dam. If the application is made by the owner of the land on one side only, he shall also set forth therein the name of the owner of the land on the opposite side on which the proposed dam is to abut, his residence, if known, and whether such owner is a minor or of full age; and, if such owner of the land on the opposite side is of unsound mind, that fact must also be stated.
If application is filed by the owner of the land on one side of a stream only, notice must be given to the owner of the land on the opposite side by serving him in the same manner as is provided for service of owners in Section 18-1-8, and if the owner be a minor or person of unsound mind, a guardian ad litem must be appointed as provided in section 18-1A-275.
On the filing of such application, the judge of probate must issue to the sheriff a writ, setting forth the substantial averments contained in the application, the name of the applicant and the place where it is proposed to erect the dam and commanding the sheriff to summon seven disinterested freeholders of the county to meet at the place where the dam is to be erected, on a day to be specified in the writ, not less than 15 nor more than 30 days after the filing of the application, and then and there to inquire touching the matter contained therein.
The sheriff and the jury must attend on the day appointed, and after the jury are sworn by the sheriff to discharge their duties fairly and to the best of their ability, they must be charged by him:
(1) To examine the land above and below belonging to others, which may probably be overflowed or injured, and to ascertain and assess the damages resulting from the erection of such dam to the several owners of such lands.
(2) To ascertain whether the residence of any of such owners, or the outhouses, inclosures, gardens or orchards thereto immediately belonging will be overflowed.
(3) To ascertain whether the health of the neighborhood will probably be endangered.
(4) To ascertain whether any other mill, gin, factory or waterworks will be overflowed.
If the applicant is not the owner of the land on both sides of the stream, the jury must also be charged to ascertain and assess the value of one acre of land on the opposite side, to include the place where the proposed dam would abut, and to locate and circumscribe the same by metes and bounds, having a due regard to the interests of all parties.
The inquest of the jury must be reduced to writing, signed by a majority of them and delivered to the sheriff, and by him returned in five days thereafter to the court of probate.
On the return of the inquest, summons must issue from the court of probate to the owner of the acre of land, if the same is assessed by the jury, and also the several owners of the land found by the inquest to be liable to damage, to appear before him on a day named in the summons, and show cause, if any they have, why the applicant should not have permission to erect his dam.