
    The People of the State of New York, Respondent, v. Orrin B. La Pell, Appellant.
    Third Department,
    November 11, 1908.
    Forest, Fish and Game Law—destruction of fish by pollution of stream —section 52 construed—evidence raising question for jury.
    Section 52 of the Forest, Fish and Game Law, prohibiting the throwing of saw dust, shavings or other deleterious material into waters in quantities “ destructive of fish inhabiting the same,” does.not.prohibit the destruction of a stream as a spawning ground, but only its pollution by such, materials in quantities sufficient to'destroy fish.
    
      In an action under said section to recover the penalty it is error for the court to direct a verdict for the plaintiff on mere expert testimony that the acts of the defendant would destroy a stream ás a spawning ground and that the effect thereof would be to drive out the fish or kill them, for that question was for the jury.
    Appeal by the defendant, Orrin B. La Pell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of . the clerk of the county of Hamilton on the 17th day of February, 1908, upon the verdict of a jury for sixty dollars rendered by direction of the court.
    
      Fred. Linus Carroll, for the appellant.
    
      John K. Ward and Ellis J. Staley, for the respondent.
   Chester, J.:

The action is brought to recover penalties for alleged violations of section 52 of the Forest, Fish and Game Law (Laws of 1900, chap. 20). That section provides that “no ' * * * sawdust, shavings, * * * or other deleterious, or poisonous substance shall be thrown or allowed to run into any waters, either private or public, in quantities destructive of fish inhabiting the same.”

Defendant maintained a shingle mill on a creek known as Pine Island stream, which flowed into Long lake in Hamilton county. The mill was about half a mile above the lake, and was so constructed that both the sawdust and shavings therefrom were cast into the creek. About a quarter of a mile .above the defendant’s dam on- the. same creek is a saw mill known as the Shaw mill, the sawdust from which is allowed to run into the stream above the defendant’s dam. On- the trial various witnesses were sworn upon the question as to whether or not the creek Was inhabited by fish and as to the amount of sawdust and shavings which the defendant had thrown or allowed to run therein. An expert witness on behalf of the State, in answer to a hypothetical question 'based upon the testimony as to the nature of the stream and the amount of saw- ■ dust and shavings therein, testified that the effect on the stream would be to destroy it as a spawning ground and that “ the effect on the fish would be. to drive them out or kill them.” There.was proof that there were fish in the stream, but there was no proof that any fish had been destroyed by the sawdust and shavings. The defendant testified that practically all the sawdust from his mill was washed out of the stream by the current.

The prohibition of the statute against throwing sawdust and shavings into the waters of the State is not against throwing them in in quantities sufficient to destroy a stream as a spawning ground, but against throwing them in in quantities destructive of fish. To give full force to the evidence of' the expert that the effect on. the fish would be to drive them out or kill them, would at most, in view of the other testimony, raise a question of fact. Yet the court determined as a matter of law that the defendant had thrown sawdust and shavings into thffistream in quantities destructive of fish inhabiting the same, and refused to the defendant the right to have that question determined by the jury as one of fact. In this we think an error was committed which requires a new trial.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  