defendant had any knowledge of such sales, if any, by Brown and Harry Wheeler. We are of the opinion that the testimony of such witnesses as to purchases from Brown and Harry Wheeler was competent and admissible testimony, even though the sales by Brown and Harry Wheeler were without the knowledge of the defendant. It is shown by the testimony of the witness Joyce that he purchased whisky at the barn in question from the defendant. His testimony shows that he got one bottle of whisky from the defendant and paid him $1 therefor; that he had since that time got whisky at the barn in question. The witness Joyce further testified as follows: Q. Had you got whisky from the defendant himself before Christmas and after the 11th day of December, 1916 ? A. Yes. Q. On how many different occasions? A. Oh, I don't know. Q. More than once? A. Yes. Q. Did you pay him for it? A. Yes, sir. Q. How much did you pay him? A. A dollar a pint. Q. Now, since Christmas, have you got whisky in the barn? A. Yes. Q. On how many different occasions? A. Three or four times. Q. Who did you get the whisky from on those different occasions? A. Frank Brown and Harry Wheeler. Q. Who is Frank Brown, do you know? A. He is working there in the barn. Q. Is he the barn man? A. Yes, sir. Q. Who is Harry Wheeler? A. Mr. Wheeler's son. Q. And each of these occasions was in the barn? A. Yes, sir. It also appears from the testimony of Reynolds, that about the first of the month, meaning January, he purchased whisky at this barn three different times. That such purchases were made from Brown and Harry Wheeler. The information charges the keeping and maintaining of a common nuisance, and the words of the information in this regard are as follows: "That C. B. Wheeler, late of said county of Williams and state aforesaid, did commit the crime of keeping and maintaining a common nuisance committed as follows, to wit: That at said time and place the said C. B. Wheeler did then and there wilfully, wrongfully, and unlawfully keep and maintain that certain place known as the Wheeler's Feed Barn, which is located on lots 7 and 8, block 8, Le Dosquet's addition to the city of Williston, where intoxicating liquors were bartered and sold to James Reynolds and divers and various other persons as a beverage." It will be seen that it is the keeping and maintaining of the common nuisance which is the gist of the prosecution. It was shown by competent testimony that the defendant, while at such barn, sold whisky. It is shown that the defendant was in charge of such premises as a feed barn; and so far as this prosecution is concerned, for all intents and purposes, he was the owner thereof. It is also shown that sales were made by Brown and Harry Wheeler. It having been shown that the defendant made a sale of intoxicating liquors at such barn to Joyce, and other testimony showing that the defendant's employees sold liquors to other parties, such testimony was all competent for the purpose of showing that such feed barn was a place where a common nuisance was maintained or kept. Section 10,117, Compiled Laws of 1913, provides as follows: “All places where intoxicating liquors are sold, bartered, or given away in violation of any of the provisions of this chapter, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter, or delivery in violation of this chapter, are hereby declared to be common nuisances. It will be noticed by an examination of the provisions of such statute there are three ways in which such place may be determined to be a common nuisance. First, when such place is one where intoxicating liquors are sold, bartered, or given away in violation of the law in question. Second, when such place is one to which persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage. Third, when the place is one where intoxicating liquors are kept for sale, barter, or delivery. It will be noticed that the language in each of the provisions refers to the place where such intoxicating liquors are sold or kept for sale, or to which persons may resort for the purpose of drinking intoxicating liquors. Neither of such provisions refers to the person who is keeping and maintaining such place. Under the first provision, to show that it is a common nuisance, all that is required to be shown is that it is a place where intoxicating liquors are sold, bartered, or given away in violation of the law in question. Under the third provision, all that is necessary to show is that such place is one where intoxicating liquors are kept for sale, barter, or delivery in violation of the law. If there is competent testimony proving the selling, bartering, or giving away of intoxicating liquors at such place in violation of the law, or that such place is one where intoxicating liquors are kept for sale, barter, or delivery in violation of law, and the jury returned a verdict of guilty, the owner or person in control and possession of such place is guilty of keeping and maintaining a common nuiThe question whether the defendant had knowledge that the place was kept and maintained for the sale of intoxicating liquors, and the further question that the place was one where intoxicating liquors were kept for sale, barter, or delivery, are questions of fact for the jury, to be determined as all other questions of fact in the case by all the testimony, facts, and circumstances. A distinction arises as to the second provision, where the place is charged to be one to which persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage. In such case the word "permit" means the same as consent, and consent implies knowledge. In such case it would require proof of knowledge of the keeper of such place of such illegal act, before such place could be held to be a common nuisance. sance. It was shown by the testimony that the defendant at his feed barn sold whisky and received pay therefor. Other testimony showed that witnesses had also bought whisky from defendant's employees, Brown and Harry Wheeler. All of such testimony was competent to show that the place, that is, the feed barn, was a common nuisance within the meaning of said statute. Said section further provides that where the owner or keeper thereof, upon conviction, be adjudged guilty of maintaining a common nuisance, he shall for the first offense be punished by a fine of not less than $200, nor more than $1,000, or by imprisonment in the county jail not less than ninety days nor more than one year. The statute provides a heavier penalty for the second offense. The statute also provides that where the existence of such nuisance is established, either in a criminal or equitable action, upon judgment of the court or judge having jurisdiction finding such place to be a nuisance, the sheriff, his deputy, or undersheriff, or any constable of any county, or marshal of any city, where the same is located, shall abate such place, etc. This prosecution is against the person only. We have carefully examined all instructions given by the court to the jury, and find no prejudicial reversible error therein. The court was not in error in refusing defendant's motion for a new trial. The alleged newly discovered evidence was of no effect excepting for the purpose of impeachment. Evidence of such character is not necessarily sufficient to require the granting of a new trial. There was no error in admitting testimony of sales of liquor between the 11th day of December and the date of the filing of the information. All the testimony on cross-examination sought to be brought out by defendant's counsel from the witness Joyce, in regard to the trouble with his wife and the threatened divorce proceeding, might just as well have been admitted, but we do not think it was prejudicial reversible error to exclude it. The jury being the exclusive judges of fact, and having seen all the witnesses on the stand, and having had an opportunity to observe their appearance, the willingness or unwillingness with which they testified, and having returned a verdict of guilty, the same is conclusive upon us, there appearing to be no prejudicial reversible error. The cases cited by the defendant of State v. O'Neal, 19 N. D. 426, 124 N. W. 68, and State v. Kelly, 22 N. D. 5, 132 N. W. 223, Ann. Cas. 1913E, 974, are considered, and by a majority of the court held not in point. There is therefore no need to examine the rule of law con tained in such cases. The order of the district court in overruling defendant's application for a new trial is affirmed. CHRISTIANSON, J. I concur in result. ROBINSON, J. I dissent on the ground that the evidence fails to show that the livery barn is a common nuisance. 1. The owner of land traversed by a natural stream may not prevent the natural flow of or pollute the stream, but he may rightfully use the water therein for any reasonable purpose as long as it remains on his land. Riparian owner — natural stream - may make reasonable use of. 2. The right of a riparian owner to have a natural stream continue to flow through or by his premises in its natural quantity and quality is subject to the right of each riparian owner to make a reasonable use of the waters in the stream as long as it remains on his land. Use of by owner — domestic purposes cumstances. manufacturing — agricultural - .cir 3. The right to make reasonable use of a stream extends not only to the use thereof for domestic purposes, but where the circumstances of the case make the use a reasonable one, it extends also to the use thereof for manufacturing, agricultural, and similar purposes. 4. The test of the rightfulness of the use which an owner is attempting to make of a stream is whether such use is reasonable. NOTE. The correlative rights of upper and lower proprietors as to use and flow of water in a stream are discussed in a note in 41 L.R.A. 737, which, after giving a general statement of the right and its application to different states of facts as arising in specific cases, discusses the right to use, flow, use for sewer purposes, and the right to relief, and the forms thereof, for violation. 38 N. D.-30. |