1878. she did not waste or unnecessarily consume any part of the estate, she did not remain to aid in preserving and taking care of it. Novem'r Harris V. Harris. The court having properly, as I think, decreed in behalf of the husband a divorce from the bond of matrimony for the wilful desertion of him by the wife, I see nothing in the circumstances of the case which make it proper to require the husband out of his estate to contribute to her maintenance after the divorce. I find no precedent for such an allowance in the decisions of this court, and I am unwilling to make one. The unhappy condition of the appellee excites my commiseration; but courts of justice are not allowed to be controlled in their decisions by considerations of that character. "Compassion," said an eminent Virginia chancellor, "ought not to influence a judge, in whom, acting officially, apathy is less a vice than sympathy." Chancellor Wythe, Commentary on Field's Erx v. Harrison & wife, Wythe's Reports, (Minor's Ed.) 282. Carr v. Carr, 22 Gratt. 168, was a case which, in its circumstances, appealed strongly for sympathy in behalf of the young wife. The bill was filed by the husband for divorce from bed and board on account of alleged desertion by the wife, and for the custody of their infant child of very tender age. This court held that there was desertion on the part of the wife, and no sufficient cause for it; and in delivering the opinion of the court, Judge Bouldin said: "In holding, as we do, that there was no sufficient cause for the desertion of the husband by the wife in this case, we must add that we are very far from holding the husband blameless. On the contrary, his. conduct towards his young and inexperienced wife has in many respects been in the highest degree reprehensible. He Novem'r V. has treated her with too little tenderness and consid- 1878. eration in the new and trying position in which she was placed. He has at times been coarse, rude, and petulant, when he should have been gentle, soothing, Harris and affectionate. He has left her to bear alone bur- Harris. dens and trials which it should have been his highest pleasure to share and relieve; and he has been close, exacting and penurious with her, when he should have been, to the extent of his means, openhanded, liberal, and generous. We think he has much, very much, for which to reprove himself. Both parties have been to blame." Although the husband was thus not without fault," the divorce was granted, alimony denied to the wife, and custody of the infant child given to the husband. I am of opinion to reverse so much of the decree appealed from as makes the allowance to the wife, and affirm the residue, without awarding costs to either party. After charging the annuity upon the lands of the appellant, the decree further provides, that "the said annuity shall be in lieu of all dower-right which the said Sarah C. Harris (the appellee) might otherwise have in and to the real estate of the plaintiff, Daniel M. Harris (the appellant)." Upon the principles recognized and acted upon by this court in the case of Porter v. Porter, 27 Gratt. 599, it would seem, by analogy, that the effect of a decree of divorce from the bond of matrimony, without any special provision in the decree as to the propertyrights of the parties, would be to extinguish, or arrest the consummation of the inchoate or incipient right of the wife to dower in the real estate of the husband. See 2 Bishop on Mar. and Div. §§ 706, 707, 708 et seq; VOL. XXXI-5. 1878. 1 Bishop on Law of Married Women, §§ 239, 347, 348 Novem'r Term. et seq.; 1 Minor's Ins. 292. Harris. If such would be the legal effect of the decree of Harris divorce merely, there might be a question whether the court may not, under the broad and comprehensive discretion given by the statute "concerning the estate and maintenance of the parties, or either of them," counteract this effect by specially providing that, notwithstanding the divorce, the inchoate dower-right shall be preserved to the wife and await the contingency by which it may become consummate. If, on the other hand, the decree of divorce merely would not per se affect this inchoate right of dower, there might be the further question, whether the court, under the statute, may not control the right, and, as was ordered in the present case, bar it, and substitute, in lieu thereof, a vested interest, as money or other estate of the husband. But in the view I have taken, it is not necessary to decide any of these questions in the present case, and I express no opinion upon them. CHRISTIAN and STAPLES, JS, concured in the opinion of Burks, J. MONCURE, P., and ANDERSON, J., dissented. The decree was as follows: This cause, which is pending in this court at its place of session at Staunton, having been fully heard but not determined at said place of session, this day came here again the parties by their counsel, and the court, having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in 1878. Novem❜r Term. V. Harris. writing and filed with the record, that the said decree, except so much thereof as doth adjudge, order, and decree that the plaintiff, Daniel M. Harris (the appellant here), and the defendant, Sarah C. Harris (the Harris appellee here), be and they are hereby divorced and absolved from the bonds of matrimony, and that the marriage between them be dissolved, is erroneous. It is therefore decreed and ordered, that the said decree, so far is the same is hereinbefore declared to be erroneous, be reversed and annulled, and the residue thereof be affirmed, and the court doth not award costs to either party; all of which is ordered to be certified to the said circuit court of Nelson county. DECREE REVERSED. Term. Richmond. HANNA . CLARKE, MILLER & HALL. November 14. 1878. 1. For many years E owned a grist-mill and II a saw-mill, both of Novem'r which were propelled by water power, the water taken from the same dam, and when there was not sufficient water in the dam to propel both, the grist-mill had the preference in the use of it. In 1851 E sold his grist-mill, with the preference to a certain quantity of water to C; and C changed it into a paper-mill, and changed the water-wheels from breast to overshot wheels, which required the taking the water from the dam on a higher level. Soon after the fitting up the paper-mill C filed his bill alleging that I was running his saw-mill so as to interfere with the work of his paper-mill, and asking for an injunction; and H replied that C was using more water than had been used by the grist-mill-HELD: 1. That the relative rights of the respective proprietors of the grist and saw-mill to the water power, continued the same after the sale to C that it was before that sale. 2. C had a right to convert his grist-mill into a paper-mill, and was entitled to the same priority over the owners of the saw-mill in the use of the water power for the operation of the paper-mill, to which they were previously entitled in the use of the water power for the operation of the grist-mill, but to no greater extent., 3. The case is one for the equitable jurisdiction of the court; and the court should proceed to ascertain, define and settle the rights of the parties to the use of the said water power. This case was heard in Staunton, but was decided at Richmond. Edward Erwin, of the county of Augusta, died prior to February, 1816. At the time of his death he owned, among other property, about eight acres of |