On Petition foe. Rehearing.
Wiley, J.The appellee has filed a petition for a rehearing, and supported the same in a vigorous brief. While the petition assigns six alleged errors for which a rehearing should be granted, there are in fact but two questions raised and discussed, to wit: (1) That the court erred in holding that the Miami Circuit Court had jurisdiction; and, (2) that the court erred in holding that the indictment was sufficient in matter of form and substance.
On the question of jurisdiction, appellee has not, in its brief, thrown any new light upon the question, nor cited us to any authority contrary to our holding in the original opinion. We- have, however, re-examined the question with considerable care, and we have no doubt but that we reached a correct conclusion, and to that conclusion we strenuously adhere.
We will now notice the second proposition discussed by the learned counsel for appellee in his brief on the petition for rehearing. Is the indictment sufficient in matter of form and substance? It is earnestly insisted by counsel that the indictment does not state facts which constitute an offense, and bases this insistence upon the proposition that it is not alleged or shown in the indictment that the offense was com*173mitted in a public place, or that the public were affected thereby. It must be conceded that if the indictment does not show this, it is bad, and a rehearing should be granted. It was evidently the purpose and intention of the legislature in enacting the statute upon which this prosecution is based, to protect the public as far as possible from the dangers, nuisance, and evils arising from the pollution of natural streams of water; and if the indictment does not show upon its face that the Wabash river was a public place at the point where it is charged that the offensive, etc., matter was discharged into the river, and where it was suffered to accumulate, or that the public were affected thereby, then it does not show a violation of the statute, and this prosecution should fail. In support of the contention that the indictment does not state an offense, appellee cites the following cases: Mains v. State, 42 Ind. 327, 13 Am. Rep. 364; State v. Houck, 73 Ind. 37.
We do not think these cases support the theory of appellee. In the first case cited, appellant was indicted for keeping a disreputable house, “to the great damage and common nuisance of all the citizens of the state of Indiana.” It was not averred in the indictment where the house was situated, except as to the county and state. It was not charged that the house was situated in any public place, as in a city, town or village, nor near any public street or highway; nor did it allege that anyone resided near thereto, or that they were in the habit of passing thereby. It did not appear that the house was even in the vicinity of any inhabitants. The averment in the indictment that it was to the great damage and common nuisance of all the citizens of the State was a mere conclusion, and the indictment was held bad. In the second case, appellees were indicted for maintaining a slaughter house, *174to the injury of all the citizens of the State, etc. It not appearing in the indictment that the slaughter house was in a public place, etc., the Supreme Court held that it did not state any offense.
The cases cited differ materially from the one we are here considering. In the indictment before us, it is directly charged that the offense was committed by appellee, by discharging into the Wabash river, in Wabash and Miami counties, the offensive and noisome substances constituting the nuisance. If the Wabash river is a public highway, then it affirmatively appears in the indictment that the offense was committed in a public place, and to the damage and nuisance of the public. Again, if the Wabash river is a navigable stream, then, under the authorities, it is a public highway, and a public highway is a public place.
By the act of March 6, 1804, section 6, Yol. 2, U. S. Statute at Large, p. 279, it was provided by congress that, “All navigable rivers, creeks and waters, within the Indiana territory, shall be deemed to be and remain public highways.” It must follow from this act of congress, that so much of the Wabash river as was in fact navigable in 1804, must be held navigable now, and is to remain a “public highway.” In the Western Gazetteer for 1817, p. 39, the Wabash river was said to be navigable for keel boats for 400 miles from its mouth; and at page 73, it was said, that it was navigable for 470 miles. In 1819 there was a reprint of the Gazetteer in Ireland, and at pages 40 and 75 the same statements are made. In the Indiana Gazetteer published in Indianapolis in 1850, at page 21, it was stated, that the Wabash river was navigable for 450 miles. In the ordinance of 1787 (R. S. 1881, p. 1430), Art. 4, it is provided: “The navigable waters leading into .the Mississippi and Saint Law*175rence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other state that may be admitted into the Confederacy.”
It is a matter of public history that the Wabash river was used as a public highway between its mouth at the Ohio river and the portage somewhere betAveen Huntington and Port Wayne, for many years prior to the time when George Eogers Clark drove the British from Fort Vincennes by this route up into Canada, February 25, 1778. In the case of Depew v. Board, etc., 5 Ind. 8, the Supreme Court held that the ordinance above cited has been adopted and recognized by congress and is a valid and subsisting law of the United States. See, also, Neaderhouser v. State, 28 Ind. 266; Cooley on Const. Law, p. 26. January 23, 1829, the legislature passed an act entitled “An act relative to jaavigable streams declared highways by the ordinance of Congress of 1787.” Acts 1829, p. 79. . It was there provided: “Every person or persons, who shall erect and keep, or who may have erected, and shall continue to keep, any mill dam, or other artificial obstruction, across the bed, or channel of any stream, or river, which is navigable, and the bed or channel of which has not been surveyed and sold as land by the United States, shall upon conviction by indictment, be fined in any sum not less than $3 nor more than $500, for every week any such obstruction may be kept and continued.” Even as late as 1850, the legislature passed an act authorizing William McDowell, of Adams county, to erect a mill dam across Wabash river, in said county. Local Laws 1850, p. 175. This act provided that said dam was “not to exceed six feet in height, with suit*176able slope or lock so as not to interrupt the navigation of said river, when the river is in the proper stage for the same.” In Dawson v. James, 64 Ind. 162, it was held that the Wabash river was a navigable stream, the bed of which had never been surveyed or sold. Courts take judicial knowledge of the geography of the country, and hence judicially know that Wabash and Miami counties are less than 400 miles distant from the mouth of the Wabash river. We also judicially know that the cities of Wabash and Peru, and other towns, in said counties, are situated on the banks of such river.
From what we have said, and the authorities cited, we think it must be held that the Wabash river is a navigable river, and hence a public highway, and as it is'a public highway, it is, under the authorities, a “public place.” It was therefore a “public place” where the appellee unlawfully caused and suffered certain offal, filthy and noisome substances * * * to be collected and remain in * * * the Wabash river,” etc., “to the damage and prejudice of the public.”
A public highway is prima facie a public place, and so it has been held. State v. Moriarty, 74 Ind. 103; Rosenstine v. State, 9 Ind. App. 290; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117. In State v. Moriarty, supra, appellee was indicted for having been found in a state of intoxication in a “public street, highway and sidewalk.” The court said: “The indictment, in charging that the offense was committed in a public street, shows at least a prima facie case.” As the offense charged in the case before us is shown by the indictment to have been committed in a public place, it is sufficient to apprise the appellee of what it stands charged, and is a substantial compliance with the *177statute. The second count of the indictment is not subject to the objections urged against it, and is, in our judgment, good. Petition overruled.