| Amos Binney v. The President and Directors of the Chesapeake and Ohio Canal Company. MSA S 512-6637, folders 1-3 and oversize. The case is reported in Theodorick Bland, Reports of Cases Decided in the High Court of Chancery of Maryland, vol II, pp. 99-166. The case and all surviving documentation submitted to the Chancellor are available on line and on CD. Insert cd labeled MSA_C_512_6637. To view, activate the index.html in the root directory of the CD. The original of the decree is also available as a multi-layer tif file.
Chancellor Bland extracts the case as follows:
When an attachment is in the nature of mesne process, the Sheriff may take bail for the party's appearance; and on a return cepi, the sheriff may be ordered to bring in the body; or he may sue upon the bail bond. It is the better mode, in most cases, to decide on the motion to disolve the Injunction, before an attachment for the breach of it is disposed of.
The court frequently refuses an injunction where it acknowledges a right, when the conduct of the party complaining has led to the state of things, that occasions the application; but in most cases, to obtain an injunction, it is suffcient, that the qustion is important and dobutful. In some cases the injunction is granted by a special order, allowing a motion to dissolve, to be heard at an early day. The making of a substantial amendment dissolves the injunction of course, unless expressly save. An anser, which purports to be the answer of several; but is not sworn to by all of them, may be taken off the file; or considered as the answer of him only who has sworn to it. A defnedant may sufficiently answer, by adopting the answer of his co-defendant. --No one is a party to the suit against whom no process is prayed. --A misnomer may be waived, but if relied on, it is fatal.
Where the legal capacities of parties, as charged, are different; such capacities must be ocnsidered as if they were different persons. --A corporation can only be called on to answer by its proper name. -- All corporations are subject to visitorial power; or to some legal control. --In general, a corporation may alien all, or any of its property at pleasure.
A natural mill-site described. -- It is not legal to erect a new mill near to, and in rivalship of an old one.--The power conferred on the Potomac Comapny in regard to mills considered. --The nature and application of presumption or right as to certain mill-sites.
The Potomac river belongs entirely to Maryland --above tide, it was not originally deemed a navigable river; but has been made so, in a qualified manner, by law.
A grant of the power of eminent domain is one which must be construed strictly; it cannot be exercised for any but a public purpose; and, in general, does not admit of any repetition. The jurisdicaiton of this court in regard to persons or things not within the state; and the uncontrolled concurrent jurisdiction of the judiciary of this state, and that of the neighboring states, in some peculiar cases. --The termination of a canal at the tide in a certain district, must mean a convenient port in that district. --The usage as to the termination of canals. The difference between rivercanal navigation.
No parol proof, nor any part of the proceedings of either branch of the legislature, can be admitted to explain th elanguage of an act of Assembly; except as to private acts, in which there may be a latent ambiguity.
[Bland's index references to Binney's Case:
MILLS
A mill-site on a descending stream how constituted, p. 114; 116
The Plaintiff must describe and shew himself entitled to a mill-site before he can have any relief founded on a claim of such property, p. 117
The water of a stream cannot be diverted to the prejudice of the owner of a mil-site on it, p. 118
One mill may be erected so near another, as to compete with it for its custom, p. 119
The nature of mill-sites as connected witht he canals of the Potomac Company consided, p. 130
The claim of surplus water issuing from a canal for mills, founded on presumption, p. 138
RIVERS
The Potomac rivers belongs altogether to the state of Maryland, pp. 123; 127
The Potomac above tide declared to be a navigable highway to a certain extent, pp. 124, 128
A River not navigable may be made so by law, p. 125
A riparian holder has a right so to use the waters of a river as not to injure the rights of others, p. 125
The compact between Maryland and Virginia as the the river Potomac, p. 126
A common use of rivers flowing between conterminous states presumed, unless, as in the case of the Potomac, the contrary can be shewn, p. 127
The banks of rivers, why designated as right and left, p. 127, note.
Improved river navigation as distinguished from canal navigation, p. 158
See biographical materials on Theodorick Bland (1776-1846), who as a native Virginian wrote an exhaustive opinion denying Virginia's claim to the waters of the Potomac.]
Binney's Case appears as Virginia exhibit 4 |
