200 Years Ago in Washington County, Indiana

DECEMBER 1, 1814

On this date Sheriff William Hoggatt summoned a jury of neighbors to meet him where the Vincennes Road forded Blue River downstream from where Mill Creek flowed into it. Sheriff Hoggatt was acting under a writ issued by the Washington Circuit Court. George Beck had appeared before the Washington Circuit court on in late November 1814 seeking the issuance of a writ of ad quod damnum so that he determine whether to build a milldam on Blue River in the southeast quarter of Section 11, T1N, R3E. Beck had obtained title to this land from the US Government on February 23, 1813. Beck’s Mill was located in the diagonally adjoining northwest quarter of Section 11, T1N, R3E. It was at this location in 1808 where George Beck and his sons had dammed the mouth of a cave spring that had its outflow into Mill Creek. Mill Creek took its name after Beck’s Mill which was about 2000 feet west of the site where George Beck was considering building another mill.

“Ad quod damnum” is a Latin phrase meaning “to what damage”’ It refers to a legal procedure where the sheriff inquires of jurors under oath as to what damage a grant conferred by government would cause to various people if the government were to make the grant. It can best be described today as a private condemnation action. As many watercourses were either on unclaimed public land or on streams declared to be navigable, the local court was vested with the authority to control the use of rivers and streams. As the damming of a river would both reduce the downstream flow and partially flood the river upstream, the value and use of riparian land by both the US government and landowning neighbors could be adversely affected. By the assessment of damages by a jury, the proposing mill operator could determine if he wished to proceed with the construction of the dam. The downstream owners below Beck’s proposed milldam were the estate of Susannah Elliot and John Sheets. The upstream owner with a potential claim was Jacob Copple.

On the day that John McPheeters received the verdict on the second slander suit he was litigating, he hired attorney William Hendricks to obtain a writ of ad quod damnum from the Washington Circuit Court so that he could construct a milldam on Lost River. Sheriff Hoggatt summoned a jury to assemble at Lost River on December 3, 1814. The McPheeters tract was described as the northwest quarter of Section 21, T2N, R2E. This land today is bounded by Ike Drew Road on the south; Roger Green Road on the north and the Orange/Washington County line on the west. Interestingly, McPheeters was seeking permission to build the milldam before he actually owned this riparian land along Lost River. Although he had undoubtedly registered his claim for this tract of land, McPheeters did not actually make his payment in full until later which resulted in his deed from the US Government dated April 2, 1818. Upstream occupants with registered land claims from the McPheeters proposed mill site were George Arnold and Harvey Finley. The downstream owner was the trustee of the School Section as Section 16 in each congressional township was reserved by the Northwest Ordinance to support public schools. This land was leased by the agent appointed by the provisional circuit court. David McKinney who had received his land title on October 1, 1814 was the next downstream owner.

The records of the Washington Circuit Court do not record what damage assessments these two juries determined. As there was no operating watermill in this part of Lost River Township, McPheeters must have thought that he could get business in this area under settlement that was presently going to Beck’s Mill on Mill Creek and to Samuel Lindleys Mill near Half Moon Spring near Lick Creek. There is no record that a milldam was ever built by John McPheeters or anyone else on Lost River in Washington County, Indiana Territory.

The reason that George Beck was interested in building a milldam on Blue River within shouting distance of his well-known mill is unclear. Maybe his first mill had so much business that he hoped to draw even more milling work by having a nearby mill to accommodate the demand for ground grain on the Washington County frontier. Beck did not build a mill on his land on Blue River but, a flour mill was built about 1820 near this location and was operated by Green and then by William Rudder for over 60 years.

The legal procedure used by George Beck and John McPheeters in the late autumn of 1814 was seldom used by other settler/entrepreneurs who built dams for the operation of either grist or saw mills. Mills built by William Lindley at three locations on Royse’s Fork of Blue River between Brock Creek and the Middle Fork of Blue River did not use formal legal procedures to have riparian rights declared. These dams may have been built before there was a local court conveniently located to deal with riparian property rights. The milldam builders may have informally made arrangements with upstream and downstream owners. These informal agreements could have been compensated by free or discounted use of grinding or sawing services at the mill.

Disputes over the use of rivers and streams for milldams did arise in the early years of Washington County, Indiana. In 1816, Zachariah Nixon built a milldam on Brock Creek downstream from the present day location of the Salem High School soccer field without using any legal procedure. Nicholas Hubbard who lived upstream from the current site of the North Main Street Bridge took exception to Nixon’s dam claiming that his land was damaged by the impounded water. Hubbard and Nixon entered into a written agreement to choose four arbitrators to assess any damages that were caused to Hubbard. Nixon also agreed to post a $100 bond to guarantee payment of any damage award the arbitrators declared. The costs of the proceeding were to be divided equally. The agreement was witnessed by Justice of the Peace John McCullough and Jacob Smith on May 23, 1817. The arbitrators selected were Godlove Kamp, William Lindley, Lewis Crow and Jeremiah Lamb. These referees viewed the Nixon dam and the Hubbard property and determined Hubbard’s damages to be $90. The finding was filed with Justice of the Peace McCullough who then ordered Nixon to pay the damages every six months in three installments of $30 each.

The result of the Nixon-Hubbard dispute is somewhat puzzling as George Brock owned land between the Nixon dam and the Hubbard land. Looking at Brock Creek today, it is difficult to believe that a dam by the football practice fields would impound water beyond the bend in Brock Creek upstream from the SR 135 Bridge. Also the damage award seems rather generous as George Brock and Nicholas Hubbard only paid $320 for the 160 acres that Hubbard was protecting from impounded water. Undoubtedly, early settlers highly valued having access to a free flowing stream. Perhaps, this is why John McPheeters who had a successful mill on the Mutton Fork of Blue River never built a second milldam on Lost River.

PIONEER MILLDAM