¶1Tbe defendant was convicted of obstructing a navigable stream near tbe city of Minot in Ward county. Tbe stream is tbe Mouse river, and tbe place and act and time of tbe alleged obstruction are identical with those involved in tbe civil action of Bissel v. Olson, ante, 60, 143 N. W. 340. In tbe civil case, it was held tbat tbe Mouse river was not at tbat point navigable, or at least tbat tbe plaintiff failed in bis proof.
¶2Counsel for tbe state has stipulated that tbis judgment be reversed on tbe authority of Bissel v. Olson, supra. While tbat stipulation is not binding on tbe court, the record in tbe case at bar has been examined, and from such examination we are satisfied tbat, on tbe authority of tbe civil action referred to, tbe conviction cannot be sustained, and accordingly, tbe stipulation is approved and tbe judgment is reversed.