Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-08

Of Mr. Belcber then reviewed some of the
cases cited by defendant, and showed that
in several of them the Courts hold,
as plaintiff claims here, that for q
public nuisance there can be no prescription /;
and also that one in doing lawful labor car
not throw earth and stone on his neigh bor's
lands. He cited cases il Maine where saw
mills cast material into a navigable river
and the Courts held it to be public NUS
ance, and that it must be stopped. In Cali
fornia in two cases the Supreme Court holds
there can be no prescription or Limitation as
to nuisance as against tie United States
or one claiming Hereunder. Counsel made
fervent appeal to the Court to interpose
aud save the valley and its people as the Sen.
ale interviewed TO save Italy from the effects
of mining, IS Pliuy records.
Afternoon Session.
session, opened the closing argument for the
defense. He said in 1850 California
erected herself into State prior TO admis-
sion to the Union, and hence Lawyers at the
1851 have any binding effect. The discovery
of gold then drew here great population
for one purpose. the search for gold. They
were not egriculturists. and the capacity of
to be expected from such a population that
never dreamed of agriculture here? 1t gave
the law to the State, was the source Of ali
power They controlled all conventions, and
gave no countenance to those from the COW
,unties. The State Government was organ
ICED by
SUCH A POPULATION.
It did not want to pass through the terri
torial gate, but sprapg over the wall into the
Union. The people claimed to OWE Califor-
MIA, and demanded admission, or else to be
let alone in independence. 1t was an abso.
lutte exhibition of squatter sovereignty, and of
the doctrine OF appropriation. They made
their own rules and regulations. They pro-
posed TO exclude foreign miners, and in the
old journals of legislation they told the Fed.
agriculturists. Such was the feeling and
it is spoken of here historically only, and not
as being right. They borrowed 81, 800, 900,
levied taxes, paid 81, 600 for design for the
great seal Of the State, that refers almost
wholly to mining. and passed a law to regu-
late niues and foreign miners' license, and
punished foreigners for mining without
license; then they passed an Act to prevent
distractions to navigable streams, and declar-
ing certain streams navigable, but 40 one
ever thought of considering then mining So
an obstruction TO the streams, for the laws
were contem poraneous. Sacramento was the
child and favorite of the miners for the
,pita of the new government. Yet we are
told Sacramento is nov arrayed against the
mining interest, but we know it to be untrue.
The miners
WERE WITHOUT A RIVAL
- -
against them. Ali power was in their hands.
and they put the men on the bench who
shaped the policy of the State as the miners
had begun it. Then, after all this, the State
was admitted, and then came she Act per.
hitting miners to make regulations, etc.,
they thus receiving back part of the legis-
l.tive power of the State. Was anything of
that kind done for agriculturists? In 1855
came the Act permitting miners to go any
where and mine on agricultural lands, with
] initiation, however, that bond should be
given for damage. That was done with O
sense Of justice-a self.imposed restriction on
what they leld to be inherent power. Next
came the law to exempt miners from taxa.
ton then the Act to permit miners to con-
denim property for their purposes, aud lastly,
the Drainage Act. There were
MANIFESTATIONS OF POWER,
And the policy of it, and that the last two
were h i'd unconstitutional does not wea zen
the illustration The system of protects n
n life and property was complete and well
nigh perfect uuder the unauthorized govern
m ant that preceded admission to the U Nor.
By statute February, 1850 the common law
was brought into the system. Twas &C
ciety with laws OF custom everything was
80 and SO in California, if you asked VIII t
the law was. Under Mexican rule govern
ments were continually changing, and ere
fashion scarcely got on till a new one put it
off. The American people found chaos here,
and brought out of it order, and set up tie
Common law as that best understood by their.
B 1t why did not some one suggest then tht
the common law would interfere with some
mining rights? Because it was the boast Of
the Common law that it adapted itself to the
existing condition OF things. So the laws
ana the executive fostered the great lead
lag interest, mining. AS late as Gov
eraor Twins administration this was
illustrated, where, by message, he set oft
the conflict between mining and agriculture,
and depiored injury to either, and pointed
cut the calamity to follow the enforcement
Of the common law against the miners. The
present Executive has followed in the same
vein. The judicial department, too, kept
pace with the legislative and executive. An
considered claimed rights in direct opposi-
ton to the common law. In the same vol
ume a case was considered, where miner
turned the whole American river to work the
bottom, and the doctrine of riparian rights
was not considered which guarantees that
the water shall flow where accustomed to-
and the Court held the pursuit lawful, though
the whole stream was diverted. In 1855,
5C,l. tins righs OF a miner to uss stream
was supported, as being according to the
wants, customs and policy Of the country.
So in ) Cal. 80, the Court declared the
right to obtain gold to be
PUBIIJ FRANCHISE,
Whatey,r that ir. So tbs repei ID in 6 Cal
55S In Cal, 40, is remarkable case, for
tn Federal Supreme Court praised and in
dorsed as one of the foundation stones of tie
California system they came later to approve.
There the miners right of individg OIL appro-
priation of water, subject to local customs
sufficient to give effect to the successful
working of the mines ard the greatest good
OF the q ,test number. In 1857, Cal,
Sims IS Smith, one turned his tailings into
Il abbit Creek. and another caused the waters
of the creek to flow back into the creek 80
the tailin,s would net flow #. The Corr; held
the act of the latter an encroachment on the
rights q the former. So in Cal, 33s,
it recognizes the right of appropriation If
water for mining. So in 10 Csl.. 143, the
right to use the channel of a stream with
which to drain tailings
Is AN ESTABLISHED RIGHT,
AS the channel of stream is the necessary
and proper outlet for thu tailings. Tia
oughtro settle this case. for the plaintiff has
not set up against this defendant an unreass n.
able use of the stream. etc. In 46 Cal, %,
Stone VS.. Bu,npus. with Rhodes and Belchsr
on tie bench, but the former not partici-
patipg in the decision, ths local customs are
rec " pized ss to the control Of water for min
ing. How could it be otherwise, unless you
can work the mine without water? First
Montana Rep. 2l7. cited by plaintiff, he did
not consider good suthority in California. In
25 Cal. 504. Justice Rsodes said the right to