BINNEY'S CASE. 117

yet, that no one of the several owners of the lands, when taken in
the separate parcels in which it is held, be entitled to any one mill-
site. And this, there seems to be good reason to believe, is the
real truth of the case.

From the plot, filed as the defendant's exhibit B, it appears, that
the lands, lying between the head of the little falls and the tide,
were granted by the state, in many distinct parcels; and most pro-
bably to different grantees. The several tracts, called Arell's
Folly; Addition to Arell's Folly; Jacob; Resurvey on Jacob; and
White Haven; besides other parcels, not named, are represented
as lying along the river between the head of the little falls and the
tide. From the plaintiff's printed exhibit A, it would appear, that
the mill-site, lying on the margin of the river, from the head of tide
upward, belonged, in the year 1770, to one John Balendine; that
he sold it to Way, Paxson and Cloud; all, or one of whom held it
about the year 1784; that, prior to the year 1816, it had passed
into many other hands; that it then became vested in two persons;
then in a family; and then the plaintiff purchased one-fourth. And,
in some loose marginal notes on another plot, marked as the de-
fendant's exhibit B, some of the land along the river, from the
head of the little falls to tide, is said to be, at present owned, or
claimed in separate parcels by the claimants of Arell's Folly, and
the claimants of Jacob, in distinct pieces; by William Stewart, by
William Murdoch, and by Adam Cloud's heirs. The defendants
do not admit that the plaintiff is entitled to a mill-site on any part
of this land; and, therefore, as in such case, the plaintiff must set
forth and sustain his title by proof, it would be impossible to pro-
nounce, from the pleadings, if they were ever so clear in represent-
ing only these facts, that the plaintiff was entitled to any mill-site,
lying on any part of the river shore within the jurisdiction of this
court.

But, let it be supposed, that the plaintiff had set forth, and sus-
tained his title to a mill-site. The next inquiry is, as to the kind
of danger with which he alleges it to be threatened. It must be
recollected, that the mill-site thus claimed, must lay below the
head of the little falls; because he claims no land above those falls.
The injury, against which he asks protection, he says, will be pro-
duced by the dam, which the defendants are erecting across the
river Potomac, four feet above the present surface. But this dam is
on the very upper point, as he alleges; or, as the defendants allege,
entirely above his land; and, consequently, he cannot, in any way,
16 v.2