The jury found a special verdict, as follows: "That defendant did fell trees, and within two years prior to the finding of the indictment, in White Oak River, in Onslow County, between Barker's Bridge and the head of said river, which trees they carried down the river in (662) rafts to their mill to be sawed into timber. This felling was not willfully done, but in the interest of their mill, and the river was used for floating the rafts down the same. The branches of the trees were cleared from the river; some of the logs, as is usual in such cases, fell out of the rafts and sunk; many were got up again, but some were not. These rafts and logs were in the river more than five days, and a tree on one occasion remained in the river before being cut into logs more than five days, but was cut and removed as soon as practicable by defendant. The river, at the point where the trees were felled, is thirty or forty feet wide, and is in the summer too shallow to float logs, and is not navigable there. And the jury say that they are unable to find upon said facts whether the defendant be guilty or not guilty, and *Page 417 thereupon ask the instruction of the court." Whereupon, the court instructed the jury that the defendant was not guilty and a verdict was rendered accordingly, and from the judgment thereon the solicitor for the State appealed. The statute (Laws 1887, chap. 72, sec. 1) provides "that it shall be unlawful for any person to fell any timber, brush or other obstruction in the White Oak River, from Baker's Bridge to the head of White Oak River, in the counties of Onslow and Jones, and allow the same to remain in said river for five days." The charge in the indictment is that the defendant "on 1 January, 1890, in Onslow County, unlawfully and willfully did fell timber and logs in the White Oak River, etc., and did allow the same to remain in said river for five days," etc. The jury find, as a part of the special verdict, that the defendant felled trees into said river, between the points mentioned in the statute and in the indictment, during 1889 (within two years before the finding of the indictment), and that on one occasion one of the trees so felled remained in the river more than five days before it was (663) removed.
It would seem that the testimony brings the defendant very clearly within the letter of the law, and is sufficient to sustain the charge in the indictment. We find no intimation in the record of the grounds on which the learned judge who tried the case below rested his ruling that upon the special verdict the defendant was not guilty, and we have therefore examined the facts found with great care, in order to ascertain whether there is any matter of avoidance set forth in the findings which, in law, excuses the apparently criminal conduct of the defendant. It is true that the facts found would seem to warrant the conclusion that the stream was capable of being used at all seasons, except in summer, for the purpose of transporting logs to points where they could be sawed into plank or boards, and was therefore a floatable stream, or water-highway of the third class, affording a channel for useful commerce. McLaughlin v. Mfg. Co.,103 N.C. 108; Wood on Nuisances, sec. 575, et seq.; Gould on Waters, sec. 107, and note; Angell on W. C., sec. 537, and note 1, p. 695;ibid., 547, note 2; Thunder Bay Co. v. Speechly, 31 Mich. 336.
There can be no question, however, as to the power of the State to prevent nuisances in such a highway by making indictable any act amounting to an obstruction of them. Were the stream one of second class, navigable, in fact, for boats and lighters, the same principle would *Page 418 prevail, and the Legislature of North Carolina would still have the same authority. Weber v. Comrs., 18 Wal., 57; Pollard v. Hogan, 3 How., 212; Martin v. Waddell, 16 Peters, 367; Spooner v. Alexander, 1 McLean, 337; Bowman v. Watkins, 2 McLean, 376. Indeed, the sovereign power of the State is often extended to the enactment of police regulations affecting land covered by the ebb and flow of the tide. Such (664) territory is not beyond the jurisdiction of the State, whose authority is preventing nuisances within its bounds only ceases when it is brought into conflict with the Federal government acting within the purview of its powers.
But the only remaining question is whether the criminal intent is established by the verdict. The jury find that the defendant felled a tree into the stream and allowed it to remain as an impediment to navigation for five days. The intent not being of the essence of the offense, the law presumes that the defendant intended the natural consequences of its own act, and if nothing more appeared the defendants would be guilty. S. v.Barnard, 88 N.C. 661; S. v. King, 86 N.C. 603; S. v. Kittelle, 110 N.C. 560. The jury say, however, in another portion of their verdict, that the act was not done willfully, but in the interest of their mills. This finding being irreconcilable with the principle that in felling the tree and allowing it to remain five days, when they could have removed it or refrained from cutting it down, the verdict should have been set aside and a new trial awarded. Morrison v. Watson, 95 N.C. 479; Mitchell v. Brown,88 N.C. 156; Allen v. Sallinger, 105 N.C. 333; S. v. Oakley, 103 N.C. 408;S. v. Crump, 104 N.C. 763; S. v. Bray, 89 N.C. 480. The rule is the same where the finding of a jury is not sufficiently full to warrant the court in proceeding to judgment, as where there are contradictory findings upon essential questions; a new trial must be awarded in both cases.
VENIRE DE NOVO.
Cited: Gwaltney v. Land Co., ante, 562; S. v. Finlayson, 113 N.C. 631;Comrs. v. Lumber Co., 116 N.C. 733; S. v. Bradley, 132 N.C. 1061;Warren v. Lumber Co., 154 N.C. 37; S. v. Fisher, 162 N.C. 565.
(665)