Del. Code tit. 23, § 1901 Building on unnavigable streams.
Any person may erect or raise a dam to raise water for working any mill upon and across any stream in this State, where it is not navigable, upon the terms and conditions and subject to the regulations hereinafter expressed. No such dam shall be erected to the injury of any mill lawfully existing above it upon the same stream, nor to the injury of any mill site above it on the same stream, where the fall is more than 3 feet upon the lands of any 1 person lying on or upon the stream, above the land of the person who makes application for the building or raising of such dam, nor unless the person applying shall be the owner of the land where the abutment of the dam is built on 1 side of the stream. The Superior Court within each county shall have jurisdiction on all applications to authorize the building or raising of any dam in such county. The proceedings shall be by petition to the Court upon 14 days’ notice, in writing, to all persons owning or holding land that will be affected by raising or building such dam. Such notice may be served upon persons residing in the county personally or by leaving a copy at their dwelling house, and persons residing out of the county by a copy sent to their address by mail. The Court shall by order appoint 5 disinterested and substantial freeholders of the county as commissioners, directing them to go upon and view the premises embraced within the application for authority to raise or erect any dam. In conformity with this section, after due and careful examination of the premises, they shall determine to what height the person making application may raise or build such dam, and they shall affix some durable mark at some place convenient and contiguous to such dam to designate the height thereof. They shall also assess the full value of the damages that each owner of the lands may sustain by reason of the erection or raising of such dam, taking into consideration the benefit as well as damages accruing to such owners, and shall make return in writing, on the first day of the next term of the Court held after their appointment, of their proceedings, clearly set forth in writing under their hands or the hands of a majority of them. Before the commissioners shall enter upon the discharge of their duties under this section, they shall severally take and subscribe an oath or affirmation to perform their duty with fidelity. The commissioners may employ a surveyor or civil engineer to go upon the premises with them, if they deem it necessary. The commissioners and surveyor or civil engineer shall be paid the sum of $2.00 for each day they may be employed under the order. If any owner of land affected by raising or building any dam shall be dissatisfied with the damages assessed to the owner, as returned by the commissioners or a majority of them on an order for viewing, and shall apply to the Court, within 6 days after the return, for an order of review, the Court shall grant such order and appoint 5 other suitable persons to review the premises and reassess the damages to the lands of such persons as join in the application for a review, and which are or will be damaged by the raising or building of the dam. If no greater damages are allowed to the owner of any land than were given on the first order, the owner shall not receive any larger sum than is assessed by the commissioners appointed on the order of review.
All expenses on each order of Court shall be paid by the person who applies for the order. Whenever any person who makes any application to raise or build any dam shall have paid the damages assessed in conformity with this section, or, in case of a refusal to receive any of the damages, shall have made a lawful tender of the sums so refused, the person may raise or build such dam to the height as returned by the commissioners, or a majority of them, who were appointed upon the petition.