A trial on the merits or otherwise is not essential. It is sufficient that the prosecution has ended so that it cannot be reinstated nor further maintained without commencing a new proceeding, but it must have terminated in some of the several modes in which it is possible for a criminal proceeding to reach a stage beyond which the accused cannot be further prosecuted therein": Citing Casebeer v. Drahoble, 13 Neb. 465, 14 N. W. 397; McWilliams v. Hoban, 42 Md. 56; Blalock v. Randall, 76 Ill. 224; Gillespie v. Hudson, 11 Kan. 163; Schippel v. Norton, 38 Kan. 567, 16 Pac. 804. Further discussing the question, he speaks of a discharge by a committing magistrate, and says that "if the examining magistrate finds that there is not sufficient cause to hold the accused to answer, and therefore discharges him, that prosecution is thereby ended; and the consideration that other prosecutions may be brought against the same person on the same charge, and that the grand jury, on 377 its presentation to them, may find an indictment thereon, cannot prevent the action of the magistrate from having its effect as a termination of the prosecution before him, sufficient to support the civil action." And so with the failure of a grand jury to find an indictment.

With respect to the entry of a nolle prosequi he says that "if some action or proceeding on the part of the court, or otherwise, is required to make an entry of nolle prosequi operative as a final termination of a prosecution, then of course such action or proceeding must supplement such entry; but when it is manifest that the prosecution is at an end and cannot be revived, it is not material how it came to its end and the right of the party injured by it to seek redress is complete."

And, speaking generally as to other means of terminating a prosecution, this learned author says: "The only reasonable ground for denying that the termination of a prosecution by the entry of a nolle prosequi will support an action for malicious prosecution was, that there had been no trial on the merits, and therefore no acquittal of the accused; but it is settled, as we think, beyond dissent that a trial on the merits is not essential. To hold it essential would be to permit a prosecutor to do all the damage which a malicious prosecucution can possibly effect, and then deny the accused the opportunity to vindicate himself by a trial, by having the proceeding quashed or dismissed, and thus escaping all liabil

ity for the wrong unlawfully inflicted. Therefore, any mode by which a prosecution may be dismissed or ended, though without a trial, is sufficient. The indictment may be insufficient, and for that reason may be quashed before trial. or upon trial may require the jury to return a verdict of acquittal. In either event, if the accused is discharged by the court, the prosecution is finally terminated in the sense that an action for malicious prosecution may be instituted and sustained, though there is nothing to prevent the finding of another indictment sufficient in form.

378 This statement of the law by Mr. Freeman is sustained by a great array of authority, which we deem it needless to discuss or cite.

At sections 248 and 249 of Bishop on Noncontract Law it is said that "if, on motion of the state's attorney, a criminal cause is stricken from the docket, with leave to reinstate it, the defendant is not discharged from the indictment, and a suit for malicious prosecution will be premature. nolle prosequi ends the indictment past recall, and thereupon the right to a malicious prosecution suit is perfecteda proposition from which a few of our courts, misapprehending the effect of a nolle prosequi, have dissented, making distinctions not necessary to be particularly pointed out here. "The methods of ending the proceeding are numerous, and they need not all be specified. It is sufficient, for example, if the indictment is quashed and the prisoner discharged by judgment of the court. Only the particular proceeding need be at an end, it being immaterial that the party is subject to a new one. A criminal prosecution, said a learned judge, is 'terminated (1) where there is a verdict of not guilty; (2) where the grand jury ignore a bill; (3) where a nolle prosequi is entered; (4) where the accused has been discharged from bail or imprisonment.' Therefore the court held that a prosecution was not ended while pending before the grand jury. A discharge by the examining magistrate will suffice. In the nature of some proceedings the defendant has nothing to do, and whenever the plaintiff's steps are finished, the right to the malicious prosecution suit is complete; 'as,' it was judicially observed, 'where the plaintiff was committed on articles of peace for a definite term unless he should find sureties for the peace. In such a case the plaintiff is allowed, ex necessitate rei, to maintain his action, though he was discharged by the effluxion of the time for which he was com

mitted, for the reason that he is not at liberty to controvert the statement of the defendants in making 379 the complaint, and therefore could not have a hearing and obtain a favorable decision.' A release on giving surety to keep the peace is a sufficient ending of the proceeding.'

To the same effect is Cooley on Torts, second edition, at page 215: "The termination of the proceeding must, in gen. eral, be by a final acquittal. It is not enough that the parties in a case which they might lawfully settle have effected a compromise, and thereby terminated it, or that the defendant was discharged because the offense was misnamed in the papers, or because of formal defects. But if the proceeding is ex parte to hold to bail, and the accused party has no opportunity to disprove the case made against him, he may maintain the suit, notwithstanding he was required to give bail; and so he may if on a preliminary examination before a magistrate on charge of crime he is discharged. Whether the entry of a nolle prosequi by the prosecuting officer is a sufficient discharge has been made a question. In some cases it has been held that it was; but other cases hold the contrary. The reason assigned in these last cases is that the finding of the grand jury is some evidence of probable cause, and another indictment may be found on the same complaint. But the reasonable rule seems to be that the technical prerequisite is only that the particular prosecution be disposed of in such a manner that this cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one.

It would be easy, but we think unnecessary, to cite very many adjudicated cases in support of the views of the eminent text-writers from whom we have quoted. We shall content ourselves with adding to the authorities adduced the statement of the law as given in 19 American and English Encyclopedia of Law, page 681, "that a prosecution may be regarded as terminated when it has been disposed of in such a manner that it cannot be revived, so that the prosecutor, if he intends to proceed further, must institute proceedings de novo."

The judgment of the circuit court is reversed.

For Authorities in Support of the Principal Case, see Page v. Citizens' Banking Co., 111 Ga. 73, 78 Am. St. Rep. 144; Craig v. Ginn, 3 Penne. 177, 94 Am. St. Rep. 77; notes to Ross v. Hixon, 26 Am. St. Rep. 135-137; McCormick Harvesting Co. v. Willan, 93 Am. St. Rep.

RANKIN v. TOWN OF HARRISONBURG.

[104 Va. 524, 52 S. E. 555.]

EMINENT DOMAIN-Riparian Owners, Right to Compensation for Raising Dam and Waters. If the effect of a proposed dam must be to impose on the bed of a river a greater quantity, as well as to flood its banks, destroy fords, render adjacent lands more liable to overflow, and greatly alter the natural flow and condition of the stream, the adjacent riparian proprietors are entitled to compensation. (pp. 1052, 1053.)

EMINENT DOMAIN-Agreement of Persons Injured as to the Distribution of the Award of Damages.-Riparian owners may by parol agreement among themselves designate the proportions in which they shall share any damages to be awarded for a dam to be constructed for increasing the water power of a stream, and whereby such stream in front of their lands is made more liable to flood them and to destroy their fords and otherwise injure such lands; and they may carry such agreement into effect by a deed constitutin, themselves cotenants. (p. 1055.)

EMINENT DOMAIN-Riparian Owners, Compensation for Dam Raising Waters.-Riparian owners, though not cotenants, have the right to have a stream running between their lands continue to do so in its natural condition, and, as against one seeking the right by placing a dam across the stream to raise it and increase the water power, are entitled to unite their rights in one ownership, and their interest so united cannot be taken without just compensation. (p. 1056.)

Sipe & Harris, for the plaintiffs in error.

T. N. Haas and J. B. Stephenson, for the defendant in

error.

525 KEITH, P. The town of Harrisonburg gave notice to Henry L. Rankin and others that at the November term of the circuit court of Rockingham county it would apply for leave to raise the dam across the Shenandoah river, which it had acquired under a conveyance from the Rockingham Milling Company, from a height of five feet to fifteen feet, in order to secure water power for an electric light plant for the use of the town. This notice was served upon divers persons owning land abutting upon the river, and in due course commissioners were appointed, who submitted a report to the court, to which numerous exceptions were filed. Some of these exceptions have reference to the form of the proceedings and are brought to the attention of this court in the petition for a writ of error; but at the hearing it was agreed that all errors merely of procedure

should be waived and that our judgment should be rendered upon the controlling question in the case, arising upon the tenth paragraph of the report of the commissioners, which is in the following words:

"From the end of the eddy or backwater of the old dam at the Shaver or Ammon millsite, which was five feet high, up to the river to the end of the eddy or backwater which will be made by the new dam, a distance of about a mile and a half, there is a fall of about ten feet in the river which the applicant gets the benefit of in the development of its power by raising the 526 dam from the elevation of the said old dam to the height of fifteen feet. This ten feet of fall occurs in that part of the river which is abutted by the lands of Dr. Rankin and Mrs. Burke on the east or south and by the lands of Mrs. Walker on the west and north. Your commissioners ascertain that the water power gained by the applicant by this ten feet of fall through the lands of Rankin, Burke and Walker, as aforesaid, is worth the sum of three thousand dollars ($3,000), and that the applicant shall pay the sum of $3,000 as compensation therefor.

"It appeared by statement of counsel of Mrs. Walker, Mrs. Burke and Rankin that it was agreed by their said clients that the compensation to be allowed for this water power owned by them should be divided among them in the proportion of one-half to Mrs. Walker, one-fourth to Dr. Rankin and one-fourth to Mrs. Burke. Your commissioners therefore report that, of the said sum of $3,000 to be paid by applicant as compensation for said ten foot fall in the river, through the lands Mrs. Walker, Mrs. Burke, and Dr. Rankin, as aforesaid, $1,500 thereof shall be paid to Mrs. Walker, $750 thereof shall be paid to Mrs. Burke, and $750 thereof shall be paid to Dr. Rankin."

The town of Harrisonburg excepts to paragraph 10 of the report, by which it is required to pay $3,000 as compensation for the water power, on the ground that "the said supposed water power for which said compensation or damages of $3,000 is found and allowed, is not proper to be taken into consideration as an element of damages to be compensated for by applicant, because there is no developed or existing water power in the distance mentioned in said report through which the eddy water of the proposed dam of applicant will extend, and no such power can, under the physical conditions existing, be created or developed without the construction of a