Defendant below, who is plaintiff in error, was indicted •for maintaining a mill-dam. The exceptions taken to the *108reception and rejection of evidence, and to the refusal of the Court to charge as requested, present substantially but one question; -which is, whether a party is punishable, Who maintains a dam whereby no greater nuisapce ia created than would have existed without it, and where the nuisance existing, if any, is of the same character, We think the question too plain for argument. A person lawfully using a water-course can not be guilty of a public nuisance, unless that nuisance is the consequence of his. conduct; and a mere change in the mode of enjoyment, which involves no increase of evil, can not by any reasonable rule be said to be an injurious act. Streams susceptible of use for mills may be used for that purpose without criminality unless the use involves some public grievance not before existing, which would not otherwise have been created. To hold that a mill - dam is a nuisance, when the stream without it would produce the same extent and kind of mischief, would be equivalent practically to rendering the erection of mill - dams generally an indictable offense; for it is hardly possible that the water of mill-ponds should be so entirely limpid as to contain none of the impurities which abounded in the stream before its obstruction; although, by covering marshy spots periodically flooded and exposed to the sun, the noxious ’ exhalations may be greatly diminished. We think the charges refused should have been granted, and that the testimony excluded should have been admitted.
The prosecution was permitted to ask witnesses whether the stream as dammed was as healthy to the neighborhood as it would be if the mill-pond was drawn down, the river channel ditched, the water drained from the low lands, and these lands converted into a beautiful meadow, This is not an admissible test. There is no rule of law-requiring the lands of this state to be placed in such a. desirable condition, or rendering land owners criminally responsible for not improving them in that manner.
*109The judgment below must be reversed, and a new trial granted.
Martin Ch. J. and Manning J. concurred. Christiancy J. was absent.