Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-04-01

from the mine
We know from our examination Of Mr. Urea that
he was unable TO find any Of the blue cement in tn,
river. He went there snd looked for this material
His object was to make an examination as an expert
with that view, with the view of finding this ma
terial and vet when he was put upon the stand he
could not tell US whether or not there piece oil
this blue gravel cement 10 the river. 1t is very
strange thing that Of Mr.. Uren's intelligence
and learning, who was sent there on a mission OF
tn { kind, whose very object il visiting the place
was to ascertain whether there was any material in
that stream, and If so, what the material wss,
whose intention it TO come 10 this Court aud
undertake by some theory or other to establish the
fact that this material would not be carried by the
stream, was unable to state whether or not he saw
any of this material there. But the most IN
fortunate circumstance with this attempt to
establish this theory-a theory which, in
my judgment, like defendants theory in rela-
ton to the law Of the case, is flaeious-
is that in order to establish it they produced before
this Court witness by the name Of Mr. skid
more Mr.. Skidmore, in his tes timony told US
what believe TO be true. He told us reluctantly
thigk, that the character Of the material in this
mine is materially different from that claimed by
defendant He said that this heavy blue gravel ex-
listed thirty feet from the bedrock and he said that
as You descend into the pit the Gem Mt becomes
harder and the material heavier and that at thirty
feet above the bedrock there is clear ne dividing
the different kinds Of material in the mine That
was the testimony also of Mr.. Huadley and think
OF Mr. Alhardt, and it was the testimony Of all the
=
tions of the material, the material which Mr. Humid
ley got there, and which Mr Skdmore in testifyiBg
in relation to the mater, said came from that mine
Mr.. Skidmore said there was clear line dsting iIsh
ing the two kinds Of material, and that No was
the material which existed above thir v feet from
the bedrock, and continuing from that point up.
He said the material gradually changes its color as
it ascends upward fran the blue, the n, me of the
gravel in the bottom CT the channel to the color Of
q postal card. and that the upper material was
easily washed by water.
The testimony in this case also shows tn It the
rocks in the upper washngs, from which the first
81, 900, 0o0 cubic yards taken, were 81 thick
in the material as to maintain
PYRAMIDS
There which, though subjected to the rains and
storms OF winter have maintained themselves with
out change for many years. We have 10 testimony
in this in relation 70 large rocks and had the
been any large powders in the mine, submit that
the gilant counsel in this case would have brought
them ioto Court and would have shown them to
your Honor establishing the the DRY that the
material would not come down the strea beyond a
certain point. We have the evidence Of Mr.. Tread
well IL relation to an immense boulder being moved
by stream having very much less grade than the
North Fork OF the American, and that illustrates
the power of these streams to move mat rial.
We find in this case that the mater ], being gen.
orally Of the same char cter, after it is pulserizad
and the gold extracted from it, has been thrown
into this stream, and that all except
1O,pOos wv SOblt tahDo
OF this 100000 has passed from Gold Run
down below the town Of Folsom into this valley.
Now, ask Your Honor, with these facts demon
strated how could you believe that this material
will not come down? We undertook to establish
that it would come down, and Mr. Smi h said In his
testimony that 1t would clms down. remember
distinctly what he I'D ON cross examination in re-
lation to that. He said that it would keep moving
down that it would be moving downward and
DOWN. RI and that II would all eventually come
Iuoxy fx-haT. har f1,H
floods OF the past will fnd that the Sc mountain
streams will be swept out again and cleared OF this
material But there is a very inconsistent thing in
the defens in this Particular thst suggests itself to
now 1t is thai notwithstanding the f-ct that
this material will not come down, as they say at
the time they undertake to show that there il
so much material in the mountains that il VIII de-
srroy Us any way. They say that they have done 50
much damage that We never can be saved, and they
say that We might as well sit down and submit to
the newt ible decree of fate.
l say to your Honor, then, that we have
established that it does come down. The same
operations Of nature will exist to move it down in
the future as have moved it in the past and we
shall expect finding from your Honor that it will
come down.
1t has been said by counsel on the other side in
the argument of the law and upon this pom.
shall close tie case-that this is
POLITICAL
Question question that should he addressed to the
legislative and not to the judicial branch of the
Government. That is claimed, as | undcrs and
it, upon several grounds, and for several reasons
aud one OF those reasons is the Importance of the
industry and the effect upon the state Of the Is5u
ance of injunction preventing its further prose-
cuti0n.
Defendant also relies upon the amount Of capital
invested, which 1t says has been invested after the
state had established policy In relation to mining
and its counsel refers to the number of people to
affected by theinjunction. The point suggested
by Judge Wallace in his argument on yesterday.
The question Of policy is not one to be addressed
to the Court, but if the defendant desires consd
Grafton of the question from political standpoint
it must address itself to the legislature in which
all political power is vested. This Court must de-
clare the law as 1t finds it, and whatever may be the
consequence this Court, under the commands o!
the Constitution which established it and prescribed
its jurisdiction, Is bound TO issue its injunction
to prevent this threatened violation OF the law.
Now, upon this political question, counsel asks {:
Shall the Attorney General Of this State be per-
mitted to change the entire policy of the Sitter
Ii am right in my views, the policy Of the State
was foreshadowed by the adoption OF the Constitu-
ton, which has guaranteed ampe protect TO all
its citizens in the enjoyment OF life and property
and it was foreshadCwed also by the Acceptance OF
admission into the Union upon the express stipu-
lstion that it should protect the navgsble streams
against injury or obstruction within its borders
This is not change of policy but il is az enfo,c e.
ment of the law.
He asks +" Why is the policy OF this State in the
hands OF the Attorney General' Let me ask the
gentleman what he would think of District Attor
ney. upon whom was placed the duty Of prosecuting
for violation Of the public right who would seek to
question the policy of act OF the LEGISLATURE after
it had determined the policy Of the State, and had
passe ed law in pursuance OF that policy? who
refuse to enforce law properly passed because in
his wise judgment, it against the public policy
What would the gentleman say IL, when there had
been an in rusion into public office, and his client
had addressed me, asking for the exercise OF the
power Of the State to protect the Sta against the
usurpation, l should answer him that believed the
enactment Of the Legislature TO be against the pubic
poiicv and that for that declined to enforce
it?
Now, say once more for all upon this question,
since the time that the functions Of high office
which now have the honor Of holding we're exer-
cised by the distinguished gentleman himself (Mr.
Wallice), there has never been man who has occu-
pied the position WHO has assumed the right TO
CONTROL THE POLICY OF THE STATE
Against its Legislature and its Constitution. He
charges me with attempt to control the policy of
the State when, as he knows and your Honor knows,
as every intelligent gentleman in this audience
knows, l am not the custodian Of the States public
morals of the States public policy, hut am elected
under the Constitution to perform legal duties that
are prescribed by the legislative power. He under
takes to point out to what the policy Of the State
Government is II the question be politcslo one the
Legislature and the Congress Of the United States
shaped that policy. Indeed, according to counsels
argument, that policy was shaped by the miners
themselves, who, according TO his theory, made the
laws for the farming community. But 1t is said in
this that the policy of this State is Of such long
standing that shall not be rmitted to question
it that shall not be permitted to doubt lis
cons,itutionality that are estopped from assert
ing that their acts In violation of the Act ad-
uniting the State TITO the Union.
call your Honor's attention to the case Of Id
smid vs.. the Tunbridge Wells Improvement Com
missioners, in the Law Reports equity cases, vol.
!, p. l6S. This a case in which injury had been
done to party's lakes ard la ds and the evi ence
showed that unless the acts OF the defendant were
restrained, the Injury would extend t the whole of
his lands but it urged that the injury was not
perceptible. Supp Sc in this case that the agrl-
cuiturists had complained in carry day, at time
when injury was wholly inappreciabe, whom
the pollution of the streams was but slight
and perhaps only observable at certain
times of the year. it would have been said " There
IS apprecable damage aud you must wait until il
becomes Tulsa. ee.' Ii then thy had waited five
or SIX years upon the commencement Of their
action, they would have been met by defendant
with the declaration, lyon have come too late
we have acquired an easement over your property,
and the rgot 20 use the streams by prescription"
Had We undertaken in our early day to proceed
against them, how could we have established that
at some time mining would result in the injuries
matter OF utter impossibility, and counsel the
other side well said, they would have laughed at the
man who would have brought such action. They
would have said: " OF course we have got TO main
tain the navgable streams, but not doing any
injury to them, and whenever we find that we are,
will recognize the RI hts Of other people and their
property and we will build dam up above Folsom,
across the American river, which will catch all the
debris in the canyon"
IN THE GoLDsMID CASE
The Court said: 1t is to be observed also, which
H.