Goodrich, P. J.:
The Penal Code (§ 385) declares that “ a public nuisance is a -crime against the order 'and "economy of the State and consists in unlawfully doing an act, or omitting to perform a duty, which act or omission: 1, Annoys, injures or endangers the qomfort, repose, health or safety of any considerable number- of persons; * * * ”
■ The defendants were indicted under this section for maintaining, in 1896,1897 and 1898, a dam across the Fallkill creek, in the city of Poughkeepsie, where it empties into the Hudson river. The -defendants were tried on this indictment and the jury rendered a verdict of guilty, upon which a judgment was entered adjudging that the defendants were guilty of maintaining a public nuisance; that they pay a fine of $250, and that in "default of such payment they should b"e committed to the county jáil; and in addition to said fine it was ordered that the nuisance set forth in the indictment be abated. From this judgment the defendants appeal.
The dam in question was erected across the Fallkill creek by the ancestors of the defendants more than fifty years ago, and the water power therefrom was used by them and by the defendants for their business of milling. Fallkill creek enters the city of Poughkeepsie at the eastern line and flows through it to the Avestern line. Many years ago there were four dams on the creek, known as Lent’s, Parker’s, Swift’s and Pelton’s, the latter being the defendants’ dam and located at the place. Avhere the creek empties into the Hudson river.' The pond proper, in which the defendants’ dam impounds the waters of the creek, lies east of Mill and Delafield streets, and the defendants own the lands to the westward of said streets. [452] ’ Certain 'conveyances to them were offered in evidence, but only -by name, and the description is not before this court, so that we have; ho evidence that these deeds conveyed to'the defendants any legal title to'the land under tlie waters of! the pond. It 'was stipulated only that the defendants took title under these deeds to the lands; west and south of Mill street. It is contended, however, by the: prosecution that the défendants have claimed and exercised the right of impounding the water of the creek, and for- that purpose have ah interest in or title to the pond.. To the, west of said' streets the creek, after flowing into and through, the pond, .passes under the Mill street bridge and narrows down to a neck known as, the “pool,”- which is about fifty or ¡seventyrfive feet iii breadth.,'. The defendants’ dam is at the westerly end of this pool. Originally, when the dam was built, the pond was considerably larger, than it isf at present. It is now oval in shape' and extends, according to* various estimates, some five or seven hundred feet east of the.bridge, and is four or-five hundred feet in width..' - ■ '
In 1867 an act of the Legislature was passed for the introduction of water into the city. Provision was made- for submitting, the ■question to a. vote of the citizens, and at the election there was a majority vote in favor of the introduction. The statute provided that in case of such majority vote the ^persons, therein named should be water commissioners, wdio should have “ the exclusive, power," management and control of getting the title to' the waters of Said! Fallkill creek audits'tributaries or other sources, if deemed necessary by them, and the control of the bed of the stream of said creek .and of the ponds thereon, if deemed, necessary by them.” ' The. commissioners were also authorized to acquire any fend or water for the purpose of making service, “ and to- acquire the right also to-"control, regulate or improve-the bed of the said Fallkill creek’ and: the ponds thereon” (Laws, of 1867, chap. 333, §§ ,3> 5), and for this purpose to apply for the appointment of commissioners to appraisebhe damages to the owners of the lands, waters, easements and privileges.'
' Under this provision' commissioners were'appointed to appraise. the damages sustained by the several mill owners, and awards were, made to ' all four dam' owners, the award to the ■defendantsbeirig '$40,000 as compensation for the removal of their dam.'' * The award, 7 SO fá'r -as 'the"' deféndánt's were concerned," was not-donfirmed-by the1 [453] ■court, and negotiations ensued which resulted in an agreement between the city and the defendants, by which the payment of their award was waived by them and a modified condemnation was agreed upon, under which the area of their pond was to be contracted, the •dam left standing and the defendants’ damages reduced to $15,000. The same commissioners were appointed to make the award, and the sum last named was paid to the defendants. This agreement ■contained a recital that the defendants “ have or claim to have an interest or interests, or right or rights, in and to the said pond and the maintenance of the same.” The water commissioners also agreed to do the work of contracting the pond, walling it in and filling the reclaimed part back of the retaining wall and digging out the contracted part, so that it should have a depth of four feet, and to put ■a flood gate in the dam, witli ■ the, right to hoist the gate when it should be necessary to clear the pond. The commissioners contracted the pond, built the retaining wall and put in the flood gate.
. In addition to this, the commissioners wálled up the waters of the •creek, through the entire limits of the city, to a uniform width of thirty feet, including the course of the creek over the bed of the three ponds, from which the dams were removed.
In 1884 it was found that the Pelton pond, as contracted', was filling up, and in a condition deleterious to the public health. The board of health obtained permission from the defendants to contract still further the area of the pond, without compensation, and the board walled in the newly reclaimed portion and cleaned out the part '"of the pond thus contracted. Since that time the pond has never been cleaned.
The retaining walls of the creek have become somewhat impaired, and the creek, along many of its j>arts, has been used as an open sewer, into which various kinds of refuse, are carried. Slaughter houses and privies exist- along the banks. It is not singular that,. under these circumstances, the flow of the stream and occasional freshets have carried waste, refuse and debris into the Pelton pond, where they have lodged, partially filling the' bed of the pond, diminishing the depth of the water and forming, a small island. It is not claimed that the defendants have contributed to this condition of % affairs otherwise than by the maintenance of the dam so as to pre-yent the regular and continuous flow of the water and consequent [454] scouring out of the pond. There seems to be no complaint as to-the condition of the pool below the bridlge, owned by the defendants.
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Goodrich, P. J.:
The Penal Code (§ 385) declares that “ a public nuisance is a -crime against the order 'and "economy of the State and consists in unlawfully doing an act, or omitting to perform a duty, which act or omission: 1, Annoys, injures or endangers the qomfort, repose, health or safety of any considerable number- of persons; * * * ”
■ The defendants were indicted under this section for maintaining, in 1896,1897 and 1898, a dam across the Fallkill creek, in the city of Poughkeepsie, where it empties into the Hudson river. The -defendants were tried on this indictment and the jury rendered a verdict of guilty, upon which a judgment was entered adjudging that the defendants were guilty of maintaining a public nuisance; that they pay a fine of $250, and that in "default of such payment they should b"e committed to the county jáil; and in addition to said fine it was ordered that the nuisance set forth in the indictment be abated. From this judgment the defendants appeal.
The dam in question was erected across the Fallkill creek by the ancestors of the defendants more than fifty years ago, and the water power therefrom was used by them and by the defendants for their business of milling. Fallkill creek enters the city of Poughkeepsie at the eastern line and flows through it to the Avestern line. Many years ago there were four dams on the creek, known as Lent’s, Parker’s, Swift’s and Pelton’s, the latter being the defendants’ dam and located at the place. Avhere the creek empties into the Hudson river.' The pond proper, in which the defendants’ dam impounds the waters of the creek, lies east of Mill and Delafield streets, and the defendants own the lands to the westward of said streets. [452] ’ Certain 'conveyances to them were offered in evidence, but only -by name, and the description is not before this court, so that we have; ho evidence that these deeds conveyed to'the defendants any legal title to'the land under tlie waters of! the pond. It 'was stipulated only that the defendants took title under these deeds to the lands; west and south of Mill street. It is contended, however, by the: prosecution that the défendants have claimed and exercised the right of impounding the water of the creek, and for- that purpose have ah interest in or title to the pond.. To the, west of said' streets the creek, after flowing into and through, the pond, .passes under the Mill street bridge and narrows down to a neck known as, the “pool,”- which is about fifty or ¡seventyrfive feet iii breadth.,'. The defendants’ dam is at the westerly end of this pool. Originally, when the dam was built, the pond was considerably larger, than it isf at present. It is now oval in shape' and extends, according to* various estimates, some five or seven hundred feet east of the.bridge, and is four or-five hundred feet in width..' - ■ '
In 1867 an act of the Legislature was passed for the introduction of water into the city. Provision was made- for submitting, the ■question to a. vote of the citizens, and at the election there was a majority vote in favor of the introduction. The statute provided that in case of such majority vote the ^persons, therein named should be water commissioners, wdio should have “ the exclusive, power," management and control of getting the title to' the waters of Said! Fallkill creek audits'tributaries or other sources, if deemed necessary by them, and the control of the bed of the stream of said creek .and of the ponds thereon, if deemed, necessary by them.” ' The. commissioners were also authorized to acquire any fend or water for the purpose of making service, “ and to- acquire the right also to-"control, regulate or improve-the bed of the said Fallkill creek’ and: the ponds thereon” (Laws, of 1867, chap. 333, §§ ,3> 5), and for this purpose to apply for the appointment of commissioners to appraisebhe damages to the owners of the lands, waters, easements and privileges.'
' Under this provision' commissioners were'appointed to appraise. the damages sustained by the several mill owners, and awards were, made to ' all four dam' owners, the award to the ■defendantsbeirig '$40,000 as compensation for the removal of their dam.'' * The award, 7 SO fá'r -as 'the"' deféndánt's were concerned," was not-donfirmed-by the1 [453] ■court, and negotiations ensued which resulted in an agreement between the city and the defendants, by which the payment of their award was waived by them and a modified condemnation was agreed upon, under which the area of their pond was to be contracted, the •dam left standing and the defendants’ damages reduced to $15,000. The same commissioners were appointed to make the award, and the sum last named was paid to the defendants. This agreement ■contained a recital that the defendants “ have or claim to have an interest or interests, or right or rights, in and to the said pond and the maintenance of the same.” The water commissioners also agreed to do the work of contracting the pond, walling it in and filling the reclaimed part back of the retaining wall and digging out the contracted part, so that it should have a depth of four feet, and to put ■a flood gate in the dam, witli ■ the, right to hoist the gate when it should be necessary to clear the pond. The commissioners contracted the pond, built the retaining wall and put in the flood gate.
. In addition to this, the commissioners wálled up the waters of the •creek, through the entire limits of the city, to a uniform width of thirty feet, including the course of the creek over the bed of the three ponds, from which the dams were removed.
In 1884 it was found that the Pelton pond, as contracted', was filling up, and in a condition deleterious to the public health. The board of health obtained permission from the defendants to contract still further the area of the pond, without compensation, and the board walled in the newly reclaimed portion and cleaned out the part '"of the pond thus contracted. Since that time the pond has never been cleaned.
The retaining walls of the creek have become somewhat impaired, and the creek, along many of its j>arts, has been used as an open sewer, into which various kinds of refuse, are carried. Slaughter houses and privies exist- along the banks. It is not singular that,. under these circumstances, the flow of the stream and occasional freshets have carried waste, refuse and debris into the Pelton pond, where they have lodged, partially filling the' bed of the pond, diminishing the depth of the water and forming, a small island. It is not claimed that the defendants have contributed to this condition of % affairs otherwise than by the maintenance of the dam so as to pre-yent the regular and continuous flow of the water and consequent [454] scouring out of the pond. There seems to be no complaint as to-the condition of the pool below the bridlge, owned by the defendants.
The People introduced evidence tending to show' that the dam: prevented the scouring out of the pond, and that if it were removed the Water would scour the entire pond;! that the, use of the dam by the defendants in operating the mill caused different heights of water ill the pond, so that the alternate covering and exposure of' the bed gave rise to decomposition of vegetable and animal matter causing malaria and fevers to persons living about the borders of 'tlie pond and in the vicinity; that malaria knd fevers were more prevalent in . that part of the city than in other parts ; that the condition of the pond was a continual menace to tlie public health, and that at various times the surface of the water in the pond was one or two feet below the crest of the dam. There was also evidence to show that the deleterious condition of the pond arose from the fact that'it was so filled with- debris as to diminish its capacity for holding a’large body of water.; and that; if the pond were drédgéd out or kept clean, the danger to the public health would: be decreased. '■
The defendants,, at the close of tlie prosecution and also at the close of the case, moved that the jury lie directed to find a verdict of acquittal on the grounds, briefly stated, that the dam is a lawful structure ; that there was no evidence that they used it unlawfully tii’ that it was the cause of the nuisance, or 'that they caused any accumulation of noxious matter in the pond, or that they have' any title to the lands east of the bridge, or are owners of any lands bordering thereon. We think there was ample evidence warranting the submission to the jury of the maip charge of the indictment,, and that the propriety of such submission is riot called into question by any of these grounds of motion.
The first contention of the defendants is that “ the defendants are: not liable as the committers of a nuisance^” One of the grounds of: this contention is that by the provisions of the Water Act .of 1867,. as amended by chapter 158 of the Laws of 1870, tlie board of- water-commissioners has the entire control and custody of the" pond and the whole of Fallkill creek; and that it"has the power and it is its. duty - to -clean arid keep the,pond clear, without reference to the ágreément with the defendants, and tliat, if the board exercises properly its functions,' the dam and- pond will-mot-;constitute á nuisanpe^'
[455] Assuming all of this to be true, it affords no immunity to the defendants, provided either the maintenance of the dam or the method of its use causes a public nuisance. At common law, in misdemeanors, there are no accessories — all concerned, whether instigators or perpetrators, being principals and subject to indictment as such. (Whart. Or. L. [10th ed.] §§ 223, 1422; The United States v. Mills, 7 Pet. 138.) No failure of duty upon the part of the city in cleaning the pond would afford a defense to the indictment, provided the maintenance of the dam contributed to the nuisance, much more if it was the cause thereof.
The indictment.charges the defendants with maintaining a dam across a common watercourse; that the dam prevents the natural flow of the creek and causes a large body of water to accumulate in a pond ; that the defendants permit such conditions to exist, whereby the vegetable and animal matter in the pond are prevented from discharging into the river, and are so exposed by the alternate rise and fall of the water as to become decomposed and putrid, giving forth noxious substances which corrupt the air.
The court charged that the defendants had the right to maintain the pond, but that they must operate it so as not to maintain a nuisance, and that the question for the jury to decide was whether the dam caused an alternate raising and lowering of the water and the exposure of portions of the bottom and sides of the pond, thereby causing the emanation of the noxious influences and the accumulation of tilth and offensive substances ; and that, if they found this to be the fact, it was the duty of the defendants to keep the pond clean and safe or dispense with the dam.
Here was a fair submission of the question whether the deleterious condition resulted from the maintenance of the dam; and as there was evidence tending to show that if the dam were removed, the flow of the waters of the creek, by reason of the grade and otherwise, would scour the bed of the stream and keep it clear of refuse, the verdict of the jury may not be disturbed for that reason.
The defendants contend that it was error to instruct the jury that it was within their province to determine what duty as to the maintenance of the dam and pond was - imposed upon the water commissioners and the defendants respectively by the terms of the agreement between them. This was undoubted error, as it was the [456] duty of. the .court to pass upon the legal- effect of the agreement; but we; cannot see. that any injury could result to the defendants, as the, court charged -that-if. the agreement provided that the city should maintain the pond at the depth required, and if they found that,' had the .pond been kept excavated to such depth, no. deleterious'conditions would have followed, the defendants could not be found guilty. ' ■ The . defendants also' contend that the judgment is erroneous' because it orders the-.nuisance to be abated,-which is equivalent to a judgment for its'rem.o.val; and that.the water acts of the ■Legislature and the awards of the commissioners to the defendants,- and the latter’s acceptance of the reduced award, constitute a legislative recognition -of the owners’ right to -maintain their dam until fully compensated-for-taking it down. •
, Wenzlick v. McCotter (87 N. Y. 122, 127). is cited as authority for the necessity of notice to.remove, hint that' is not the decision. - The court held that where a dam erected by a former owner of land had not. been used by the'new owner,.notice to remove was essential;., but in the present case the defendants had. been using the dam continuously in their business. Nor does the fact that, it had been in use for fifty years make any difference; no length of time.legitimates a nuisance. .The dam might have "been no menace to the public, health when constructed, or as ,it was used by the ancestors of the-defendants,, or later by the defendants themselves ;- but by change of ■ population, or other reasons, a thing not. a n.uisance .in. its inception ■ may ultimately become one, and its simple maintenance would become a subject of indictment. (Whart. C-r. L. [lOtli ed.] § 1415.) .
A somewhat curious condition, arose at the trial, when the jury returned, to the 'court room with a.question-and the following occurred: “The Court-; Gentlemen of the jm,-y haye you agreed upon ,your verdict.? Mr, Williams, the foreman, to the-court: "We would like to ask.a question.- It. lias been ..stated here -that .that