Dennehey v. Woodsum, 100 Mass. 195-198; Cardival v. Smith, 109 id. 158. These cases, as well as others cited by the appellant, would seem to hold that the entering of a nolle prosequi by the district attorney, with the consent and leave of the court, upon the indictment or information for a crime, is not a final determination of such criminal action, and therefore no action for malicious prosecution can be maintained, because it is urged that the defendant may be again arrested upon such indictment or information, and tried, and that upon such trial the accused might be convicted, which conviction would be conclusive evidence that there was probable cause for the prosecution; and upon this point the learned counsel for the appellant cite the following cases: Whart. Crim. Law, § 513; State v. McNeill, 3 Hawks. 183; Com. v. Wheeler, 2 Mass. 172; Teague v. Wilks, 3 McCord, 431; Smith v. Shackleford, 1 Nott & McC. 36; Heyward v. Cuthbert, 4 McCord, 354; State v. Blackwell, 9 Ala. 79 (N. S.); Wortham v. Com., 5 Rand. (Va.) 669; Lindsay v. Com. 2 Va. Cas. 345; State v. Haskett, 3 Hill (S. C.), 95; U. S. v. Shoemaker, 2 McLean, 114.

It will be seen by an examination of these authorities that the question as to whether, after a nolle prosequi had been entered upon an indictment or information, the party could be afterward proceeded against upon the same indictment or information, was not the point decided; and if such rule was stated as the law, it was only incidental to the real question. All the authorities hold that a nolle prosequi, entered with leave of the court before the jury is impanelled in the case, is not a bar to a subsequent prosecution for the same offense upon a new indictment or information, and there are a few cases which hold that the nolle prosequi may be recalled, and the defendant tried upon the same indictment or information. All that was decided in U. S. v. Shoemaker, supra, was that a nolle prosequi entered on an indictment was not a bar to a subsequent indictment for the same cause. Such was the fact also in the case of Com. v. Wheeler, supra. In this last case Justice Sewell says: "A nolle prosequi is often entered by the attorney for the government on discovering some informality in his indictment. I consider that it applies to the particular indictment only, and not to the offense." Sedgwick, J., says: "I think it has been held that a nolle prosequi is not a bar even to the indictment on which it is entered, though I believe this opinion has been since overruled." Bishop in his work on Criminal Procedure, in speaking of the effect of the entry of a nolle prosequi, says: We see therefore that a nolle prosequi during trial bars a subsequent prosecutiou for the same offense, whether on the same or any other indictment. A fortiori, it does when entered between the verdict and sentence. Entered before trial, it and the proceedings it discontinues are no impediment to a subsequent prosecution for the same offense. It simply puts an end to the particular indictment, count, or part of a count to which it is applied, without prejudice to new proceedings; but the part or whole of the present proceeding which has been reached by it cannot be revived. In the language of an old case, 'the king cannot afterward proceed in the same suit, but he may begin anew.' See § 1395. In a note to this section, the learned author refers to some of the oases cited by the learned counsel for the appellant in this case, which seems to hold that proceedings might be afterward had upon the same indictment or information, and disapproves what was said upon that question in those cases; and cites the following cases to sustain his statement in the text, that "the nolle prosequi puts an end to the particular indictment, count, or part of a count to which it is applied, without prejudice to a new proceeding; but the part or whole of the

present proceeding which has been reached by it cannot be revived." Reg. v. Pickering, 2 Barn. & Adol. 267; Bowden v. State, 1 Tex. App. 137; State v. Shilling, 10 Iowa, 106; Com. v. Dowdican, 115 Mass. 133; Brittain v. State, 7 Humph. 159; Reg. v. Mitchell, 3 Cox Crim. Cas. 93; State v. Primm, 61 Mo. 166; Moulton v. Beecher, 8 Hun, 100; Reg. v. Allen, 1 Best & S. 850.

In the case last cited, which was decided in 1862, Cockburn, C. J., says: "No instance has been cited, and therefore it may be presumed that none can be found, in which, after a nolle prosequi has been entered by the fiat of the attorney general, this court has taken upon itself to award fresh process, or has allowed any further proceedings to be taken on the indictment." Crompton, J., says: "The nolle prosequi being on the record, there is an end of this prosecution; but the question remains whether that is final or not. I rather think however that Mr. Archbold, in his Practice of the Crown Office, is right when he says (p. 62) that it has the effect of putting an end to the prosecution altogether.' It is said that notwithstanding that the attorney general may interfere in any prosecution in any court in England and stop it, the court may afterward award process. Goddard v. Smith, 6 Mod. 261, only decided the entry of a nolle prosequi is not a decision on the merits of the prosecu tion. The court in the course of the argument said the attorney general might issue new process upon the indictment; but as I have said, I rather think the nolle prosequi puts an end to the prosecution." Blackburn, J., gave no opinion on this point. The remarks of the judges above quoted were made in a case where the attorney general had acted without the leave of the court.

It seems to us very clear that the rule as stated by Mr. Bishop and the judges in the cases above cited must be the true rule, when the nolle prosequi is entered upon an indictment for any cause. If it be entered because the indictment is bad upon its face for want of sufficient allegations, either in form or substance, then there can be no reason for arresting the defendant for trial upon such imperfect indictment. And if the nolle prosqui is entered because there is no proof of the guilt of the defendant, he certainly ought not to be proceeded against further, and the action, though a criminal one, is discontinued for all purposes. Whether in this State, where the information is presented by the attorney for the State after an examination of the defendant before a justice, and a nolle prosequi is entered because of some imperfection in the information which renders it bad in law, a new information may not be presented without a new complaint and examination of the defendant, need not be determined in this case; as we think it must be presumed from the evidence in the case that the nolle prosequi was entered by the district attorney with the leave of the court, because the attorney and the court were satisfied that there was not sufficient proof of the defendant's guilt. And when the prosecution is discontinued for that reason, or for any other reason except for some irregularity or informality in the information itself, such discontinuance puts an end to all further proceedings in that case; and if the defendant can be thereafter further prosecuted for the offense charged in the information, it must be upon a new complaint, arrest, and examination. In this view of the case the entry of the nolle prosequi with the leave and consent of the court was a final determination of that action, within the meaning of the rule laid down for the government of actions for malicious prosecution.

In the case of Moulton v. Beecher, above cited, a complaint for malicious prosecution was sustained

1

upon demurrer, which alleged that a nolle prosequi had been entered in the criminal action in substantially the same language used in the case at the bar, and the court held the complaint sufficient. We think upon I principle as well as authority, the entry of a nolle prosequi upon au information, not upon the ground that the information is insufficient upon its face, is an end to the prosecution of that case, and that such nolle prosequi cannot afterward be vacated, and further proceedings had in that case, unless vacated at the same term at which it is entered. Bish. Crim. Proc., § 1396; State v. Nutting, 39 Me. 359; Parry v. State, 21 Tex. 746. The objection made to the sufficiency of the complaint was properly overruled.

[Omitting question of evidence.]

There is but one other question, as to the admissibility of evidence on the part of the plaintiff which was objected to by the defendent, which we deem necessary to consider. On the trial the plaintiff was allowed to give evidence of his previous good character, as a part of his case, and not in answer to an attack upon I such character by the evidence of the defense. This evidence was all objected to by the defendant. Upon this question the authorities are somewhat in conflict. This court has not heretofore passed upon the question, and we are therefore at liberty to adopt the rule which seems to us the more reasonable. The question I seems to us to be this, in determining the probability of the guilt of a party charged with a crime: Has his previous good character any bearing on the question? We think this question must be answered in the affirmative. The fact that it has weight in determining the question of guilt, in all cases where there is any doubt of the guilt of the accused party, is the basis of the rule in criminal actions, that the defendant may in all such cases, and perhaps in all cases, give in evidence his previous good character. The fact that he has such character is some evidence, and often very.conclusive evidence, of the innocence of the accused. When therefore a person is about to make a criminal complaint against a citizen of previously known good character and reputation, it is reasonable that he should consider that fact with the other facts and circumstances in determining the question of the probability of the guilt of the accused. If I lose my horse under circumstances which indicate that he had been stolen, and shortly after he is found in the inclosure of a man who has the reputation of being a horse thief, I might have probable cause for believing that that man had stolen him; but if he was found under like circumstances in the inclosure of a man whom I knew to have sustained a good reputation for many years, there would be a question, at least, whether I would have probable cause to believe such man guilty of the theft. There are many cases which hold that in a civil action, the character of the plaintiff is not in issue until the same is attacked by the defendant, and that until so attacked it is presumed to be good, and therefore there is no necessity or propriety in giving affirmative proof of such character. This as a general rule is undoubtedly the true rule; but in an action for the malicious prosecution of a criminal action, where the main question in the case is whether the defendant had probable cause for instituting such proceedings, an exception should be made. In such action the plaintiff must prove a negative, that is, prove that the prosecutor did not have probable cause to believe him guilty of the offense charged; and as bearing upon that question, he ought to be permitted to give evidence of his previous known good reputation. The following authorities are cited as sustaining our views on this question: Blizzard v. Hays, 46 Ind. 166; Israel v. Brooks, 23 Ill. 575; Wade v. Walden, id. 425; Miller v. Brown, 3 Mo. 127; Bacon v. Towne, 4 Cush. 217-240; Rodriguez v. Tadmire, 2 Esp. 720.

In the case of Bacon v. Towne, cited above, Chief Justice Shaw says: "The same facts which would raise a strong suspicion in the mind of a cautious and reasonable man against a person of notoriously bad character for honesty and integrity would make a slight impression if they tended to throw a charge of guilt upon a man of good reputation." It is said that the evidence does not show that Mills had any knowl edge of the previous good character of the plaintiff when the criminal proceedings were instituted against him. The evidence does however show that Mills had known the plaintiff for several years before the prosecution was commenced, and in the absence of any testimony showing the contrary, we must presume that he knew his reputation among his neighbors.

There are a great number of exceptions taken to the refusal of the court to instruct the jury as requested by the defendant, as well as to the instructions given by the court. Most of the instructions refused bear upon the question whether Hockert, the complaining witness, had probable cause to make the complaint as he did, and not upon the question as to the good faith of the defendant, Mills, in setting on foot the prosecution, if it was found that he did so set it on foot. After a careful reading of the instructions given by the court to the jury, we think, with one exception, noted below, all the questions upon the main issue in the case were fairly submitted. The court very pointedly told the jury that the burden of proof was upon the plaintiff to show-first, that Mills was in fact the real prosecutor of the criminal proceedings against the plaintiff, and that without his interference, such proceedings would not have been instituted; and second, that when such prosecution was so set on foot by Mills, he (Mills) had no probable cause for believing the plaintiff guilty of the crime charged against him. The court also gave the jury the true meaning of the phrase "probable cause,' and stated what facts tended to establish such probable cause, and what facts would tend to show a want of probable cause.

There are certainly no errors in the charge of the court prejudicial to the rights of the defendant, unless the contention of the learned counsel of the appellant that no recovery can be legally had in this action, if there is sufficient evidence in the case to establish the fact that Hockert had probable cause for making the complaint and causing the defendant's arrest, is the law which must govern the rights of the parties in this action. This seems to have been the theory upon which the defense was conducted in the court below, and if that be the true theory, then the judgment should be reversed on account of the inconsistent instructions given by the court to the jury upon that point. The record discloses the fact that at the request of the defendant the learned Circuit judge instructed the jury in the first place, that "in order to entitle the plaintiff to recover in this action, the jury must be satisfied from all the evidence in the action that Mr. Hockert, the complainant in the criminal action, did not have probable cause to believe this plaintiff, Woodworth, guilty of the offense with which he charged him." Afterward in the general charge to the jury, he says: "It will be borne in mind that the question is whether the defendant, at the time it is al leged he procured the complaint to be made, had probable cause for his acts. It might be that Hockert, at the time the complaint was made, did so in good faith and with probable cause, and yet the defendant might be guilty, for it might be that the advice and suggestions of defendant was what induced Hockert to believe he had probable cause." These proposi tions are hardly consistent with each other, and both cannot be good law unless the rule in the cases of this kind is that when one instigates a criminal prosecu tion and another makes the complaint upon which the

5 S., of range 4 E.) the swale widens on Dewey's land into a small pond. The pond on Boyd's land is never dry, and before he built the dam contained usually from six to eight acres, of which a space of several I acres became dry by means of the exclusion of the water which came down from the lands above, which had no other escape. The dam was a solid structure twelve feet thick at the base and seven in the top, abut a hundred paces long, and higher than the highest part of the culvert or highway. Its effect was to sub1 merge the road, and also to throw the water all back over the highway and upon Dewey, where it had no escape but by evaporation.

Boyd purchased the farm, which contains a little over ninety acres, in 1872, at which time there was no obstruction to the flowage. He first built the dam in 1877, and it was removed so as to give room for the water in 1878 by the highway commissioner. Being rebuilt, it was removed in 1879 by defendants under direction of the local authorities; Conklin himself being commissioner, and acting in pursuance of their inIstructions. The case, as it is now before us, presents no complications. The dam was built for the sole aud express purpose of shutting out the water, which had its only outlet through the swale and over Boyd's land, and this was its original and natural outlet. It was not artificial, but had always existed since the country was known; and the existence of a beaver dam makes it not unlikely that it was once a running stream. Whether its waters are to any extent from spring or not, they include the whole surface drainage, and are not confined to passing storms. There is some testimony of occasional attempts by the lower owners to obstruct the water, but no evidence of acquiescence, and very little, if any, of submission by the highway authorities to such obstructions.

If this had been an artificial drainage, the long existence of the road, which could not be kept in repair without drainage, and the undisputed fact that a regular culvert has existed at least since 1845, and that no other drainage was possible, would in our opinion put plaintiff to very strong proof to overthrow the presumption of right. The court below gave plaintiff the benefit of that analogy, and going very far in the endeavor to avoid giving occasion for cavil, limited defendant's justification to a substantially uninterrupted enjoyment of the drainage for twenty years, without substantial objection to the public or highway authorities. But plaintiff insists that his right to intercept surface water cannot be cut off in that way, and that except in case of living waters in a defined and regular channel there is no such obstacle, or none without such an undisputed prescriptive right as would be equivalent to a grant.

On the argument the whole subject was discussed with much ability. It is not necessary however to consider any more of the legal theories than such as have some application on the facts. The real question here was whether one land-owner can at his pleasure erect such barriers as will flood his neighbor's land with water that otherwise would escape over his own, in order to partially or wholly reclaim the bed of a pond which has always existed there, and get rid of the inflow. In its natural condition neither the highway nor the upper lands would be drowned. The effect of the dam is to cover portions of them with water that cannot cape. It was urged strenuously on plaintiff's behalf that there is a radical difference between the common and the civil law upon the subject of the relations of upper and lower estates as to water easements and servitudes, and that at commor law the latter owes ao service to the former in regard to the flow of surface water. As we are not expected officially to be experts in the cv law, we shall not attempt to discuss that department of jurisprudence as a separate subject. But it so

es

happens that from the time of Bracton down attention has been frequently called by the common-law courts to the fact that the whole subject of rights in water has been defined by the civil-law writers in terms which substantially agree with the recognized rules of the common law, and that they agree very closely,not necessarily because one has been borrowed from the other, but rather because both are naturally drawu from the general usages and necessities of mankind.

All of the considerations which belong to the present case depend on the reciprocal action on both upper and lower proprietors of the maxim that every man, in the use of his own property, must avoid injuring his neighbor's property as far as possible. And while the cases cited on the hearing show that courts have sometimes indulged in sweeping language, that taken independently would lead to remarkable results, the facts on which the apparently conflicting rulings rest greatly narrow their substantial repugnance. There are, it must be admitted, decisions that cannot possibly be harmonized; but their number and their force do not equal their apparent importance. And there is no subject on which local usages have had so much weight in shaping the local common law as the incidents of real estate. There are parts of the Union where the land laws have always differed from the common law of other States, while the law relating to water has been laid down in a large part of the United States in a uniform manner, without reference to their ancient condition as French, Spanish or English colonies. The civil-law definitions, or what are supposed to be such, are quoted as often under the one class of antecedents as under the other.

The chief differences pointed out on the argument as important in weighing decisions as furnishing precedents, related to distinctions between living streams in a natural flow and water of a different character in artificial escapes or in surface descents-to distinctions between urban and rural servitudes-and to the purposes for which dams or other interruptions are made. It is not disputed that perennial flowing streams of living water impose similar duties, and confer similar rights on all riparian proprietors under all systems of jurisprudence. It is not disputed that under what is claimed to have been the civil law rule, the rural proprietor of lower lands was required to receive the water flow of surface water from the upper lauds coming in substantially its natural amount and condition. Beyond this we cannot harmonize much of the contention of counsel, and must dispose of the case as it appears to us. A number of the most striking cases cited by plaintiff's counsel in support of his appeal, as laying down the broadest doctrine, and as relied upon in a good share of his other citations, were cases where the lands were in towns and cities, and the erections or acts in litigation referred to the uses of that class of property. And in relying on these it was claimed that there was no substantial foundation for any distinc tion between urban and rural property.

There is no question but that such a distinction is recognized in the civil-law authorities referred to on the argument, as well as in several of the cases cited. The distinction is one of substance, and not arbitrary. As already suggested, the adjoining owners owe mutual duties-the one to receive the natural flow, and the other not to injuriously change its conditions. It is obvious that the laying out of town streets and the multiplication of buildings cannot avoid making seri ous changes in the surface of the ground and in the condition of surface water. Grades must usually be established for streets and sidewalks and pavements, and other surface changes are usual, in addition to the walls of buildings which, with their embankments, must obstruct or change the drainage. It is almost