
    The People v. Sherburne Gaige.
    
      What not a dam within Comp. L. $5790. Evidence that the defendant injured a structure of plank built in the bank of a river, in a place where the said bank had been carried away by former freshets or inundations, and not erected across the channel of the river, in the absence of proof that such injury drew off the water contained in any mili-pond, etc., will not support a conviction upon a complaint based upon § 5790 Comp. Laws. Such structure is not a dam within the meaning of said statute.
    Had such structure constituted one of the wings of a dam or anything built into the bank by way of anchoring, protecting, or extending the dam, it might be regarded as a part of the dam itself; but not so of an independent structure built to support a break in the bank, and only accomplishing the same purpose which was answered by the bank in its natural condition.
    
      Practice in the supreme court on criminal exceptions: Nolle proseguí. Where a defendant was entitled to an acquittal on the ground that the facts in evidence, if they made out any offense at all, did not tend to establish the one charged, this court, when the cause is brought here on exceptions, will not order a new trial, but will direct a nolle prosequi to be entered.
    
      Submitted on briefs April 37.
    
    
      Decided May 9.
    
    Exceptions certified from Hillsdale Circuit.
    The facts are set forth in the opinion.
    
      Dwight May, Attorney General, for the People.
    
      Geo. A. Knickerbocker and O. A. Stacy, for the defendant.
   Cooley, J.

This appears to have been an information against the defendant for a 'supposed offense against the provisions of § 5790 of the Compiled Laws. That section provides for the punishment of any person “who shall willfully and maliciously break down, injure, remove or destroy any dam, reservoir, canal or trench, or any gate, flume, flash-boards or other appurtenances thereof, or any of the wheels, mill-gear or machinery of any mill, or shall willfully or wantonly, without color of right, draw off the water contained in any mill-pond, reservoir, canal or trench.” The information charged the defendant in different counts with having willfully and maliciously broken down, injured, removed and destroyed tbe dam of a certain water-mill of one Luther Tyler, in the township of Scipio, and with having wantonly and without color of right drawn off the water contained in the mill-pond of a certain water-mill in the possession of said Tyler in Scipio, aforesaid. As to the offense last mentioned, the circuit judge states that there was no evidence to go to the jury, but a general verdict of guilty appears to have been rendered on all the counts.

Of the evidence actually given by the prosecution, the following is all the statement which appears in the bill of exceptions: “ The counsel for the people gave evidence tending to show that the defendant, on or about the eleventh day of October, 1869, injured a structure of plank built in the bank of the Kalamazoo river, in a place where the said bank had been carried away by former freshets or inundations, and that the said structure of plank was not erected across the channel of said river.” The defense requested the circuit judge to charge the jury “that the jury cannot convict the defendant unless they find from the evidence that the structure of plank destroyed or injured by defendant was placed across the current of the original and natural channel of the river, to obstruct and prevent the natural flow- of the water in and along said natural channel, and that they must acquit the defendant if they find from the evidence that such plank were placed in the bank of the river to repair and fill up an opening in such bank, made by former freshets and inundations, and to prevent the same result from future freshets or inundations.” This request was refused.

"We think the defendant was entitled to have this charge given. We do not think such a structure as the evidence indicates is a “dam,” within the meaning in which the statute employs that word. A dam is an obstruction to the natural flow of the water in the river, but the structure in question seems to have been built to preserve and protect the natural flow. It may be serviceable in assisting to bring the water to a reservoir created by a dam; it may possibly assist, as the natural bank would have done, in retaining the water in such reservoir; but any support or substitute for the original bank, which was designed only to answer the same end in keeping the river within bounds, would be a levee or embankment rather than a dam, and injury to it could not be punished under the first clause of the section of the statute quoted. If such a structure was so situated in respect to a dam below it, as to assist in retaining the water in a reservoir, its wanton destruction without color of right, thereby drawing off the water of the reservoir, might constitute an offense under the last clause of the section; but we infer from the statement of the circuit judge in the bill of exceptions, that nothing of that kind appeared in this case.

Had this structure constituted one of the wings of a dam, or anything built into the bank by way of anchoring, protecting or extending the dam, we should have no doubt that it ought to have been regarded as a part of the dam itself; but we do not understand such to have been the case. The record indicates that it was an independent structure, built to supply a break in the bank, and only accomplishing the same purpose which was answered by the bank in its natural condition.

The verdict should of course be set aside, but we think there should be no new trial. The defendant was entitled to a verdict of acquittal upon the counts for drawing off the water from a mill-dam, because no evidence was given under them. He was also entitled to a verdict of acquittal on the other counts, because the facts in evidence, if they made out any offense at all, did not tend to establish the one charged. Under these circumstances it should be certified to the circuit court not only that the verdict should be set aside, but that a nolle prosequi should be entered.

The other Justices concurred.  