
    The People vs. Gaige.
    Vliore a person injured astruoture of plank, in the bank of a river in aplace where the bank had been washed away by a freshet, such structure not extending across- the river, or the natural current thereof, Held, that such person is not liable under the provisions of the statute, C. £.,§5790, against injuring and distroying dams, reservoirs, eauals, &c. The structure referred to is not to be treated as a dam within the meaning of this statute.
    Error to Hillsdale Circuit.
   Opinion bp

Campbell, C. J-

This was an information against die defendant for a supposed offense against the provisions of section 5790 of the Compiled Laws. The section provides for the punishment of any'person who shall wilfully and maliciously break down, injure remove or destroy any dam, reservoir, canal or trench,' or any of the wheels or machinery of any mill, or shall wilfully or wrantonly 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 wilfully and maliciously broken down, injured removéd and destroyed the dam of a. certain water mill of one Luther Tyler; in the township of Scipio, and with having wantonly drawn off the water contained in the mill pond of a certain water mill in the possession of said Tyler in Scipio aforesaid.

The Circuit Judge returned that there was no evidence to sustain the latter charge, but a general verdict seems to have bóen found on all the counts. The bill of exceptions showed that counsel for tho people gave evidence tending to show that defendant about October 11.1869, injureda structure of plank,built in the hank upon the Nal«mazo» River, in a place where the bank bad been carried away by former freshets or inundations, and that the said structure was not erected across the channel. The defence requested the Cburt 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 was placed across the current of the original and natural current of the river, to obstruct or prevent the natural flow of the water and along said natural channel, and that they must acquit the defendant if they find from the evidence that such planks were placed in the bank of the river to retain and fill up an opening in such bank made by former freshets and inundations and to prevent the same results from future freshets or inundations.” This was refused.

Held, That the request should have been given, as the structure indicated was not a dam within the meaning of the statute. This structure was simply built to repair a defect in the liver bank, and it was not even a part of a dam. The verdict was set aside and a nolle prosequi ordered entered as to the defennant, as be was entitled to acquittal on all the counts.  