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

streams to these uses? Has she not known
for twenty-four years of their carrying
mining debris This dedication of the
streams is very different from prescription
or the action of the Statute of Limitations.
In II a. and E., $50, esd Epg. Com. Law
Rep, the Court held the Crown might dedi-
cate a road to the public and be bound by
long acauiescence in public uses. How is it
about this Sacramento highway over the
Crown lands? Enjoyment for long time
ought, says the Court, to be sufficient evil
dence OF dedication, except the nature of the
case shows it to be impossible. There the
road was used fifty years, but Fifty years
in England, it has always been held
here to be equal to but twenty years for the
purposes of user 30 Cal, 3S1l In ? b. 4
c., 90, Eng. G. L. Rep, IS. it was held that
the bases of many rights the public policy
not being contravened. Here it is shown
that mining was the public policy several
cases cited) In VT. Rep. an exclusive use
of fifteen years of a way was held sufficient
TO give an easement to the public. In Pc
ters, 435, 4S7. is the leading case as to user.
where public tquare in Cincinnati was in
question, and the Court held
| THE DOCTRINE OF DEDICATION
Was not confined to roads, but to all sorts of
public uses-wharves, fishing, towing.psths,
markets, landing places, cemeteries, springs
of water, harbors, public quay. Court houses,
etc. 1t is not necessary, says Washburne,
that in uses the fee shall pass, nor that the
subject of the use shall be exclusively to that
use, but it may be to one use in common with
others. Nor Is it necessary that all persons
shall share in the advantages of the use, but
it is sufficient if it is a use to town, city or
large number of individuals. Dedication
to public use is one where the public is at
liberty to avail of it. How few visit a public
market, yet it is dedication, ss has been
shown. The general doctrine of dedication
has been maintained in California by many
cases. In IA Cal. it is said no specific terms
are needed, nor does time cut so large a fig
ure in it. So the defense hold that by long
user and consent these streams have
been dedicated to the use of this great
industry of miuipg. A nuisancs is
a thing unlawfully done. These defendants
are in the prosecution OF q lawful business.
In Hill on Torts it is said that which is
authorized by the Legislature cannot be
nuisance. That act which the sovereign
power authorizes cannot be anuisance. Ceases
cited Nor will the Courts redress an injury
flowing therefrem, except ths beneficiary
misuse his privilege. lCascs cited In the
case of Green vs. Sacramento, the injury was
done, but it was the resul. OF an act under
authority the Legislature, and there was
n remedy
AS tot maxim SIC utere tao, etc., so use
your OWL etc., counsel read authorities that
maxims are not to be taken as axioms. We
advance beyond them and to higher planes of
thought and knowledge. Justice Earle q
Queens b. says this very maxim is mere
verbiage; party may damage the
property of another when the law per-
mits it and may not where the
law prohibits it, and the law must
be ascertained first, before the maxim can be
applied, and then the maxim is superfuous.
There is the matter in q nutshell. In 13
guarded, but the Court cannot protect them
to the restriction Of the rights of others. Ap-
ply the maxim literally. and to great ex-
tent it will deprive us Of the use of cur prop
erty, says the Court. In CON-, 1873, Chief
Justice Bronson said the maxim is not of
universal application, for, as general rule,
man acting with discretion usually may do
with his own as he will, but he may not will.
fully do 30 as to injure his neighbors, etc. So
ia Selden, 445, the Court said the maxim is
iterated and reiterated in the books, and yet
there is scarcely an aphorism known to the
law which is more vague and less clearly de-
fined. The business of life cannot be carried
on under it. One may do with his own as he
pleases, so long as he does not infringe some
fxad lawful right of another. In 7 Cal.
Reps. the Supreme Court of this State refers
to the maxim, and says in reply that no man
in the exercise of his own lawful right does
any man an ipjury-citing another we'll
known maxim against the one, sic uterc tue,
etc. (Broom's maxims cited.) In 40 Pa,
Judge Strong says an injury to another may
be caused by the rishtful use of our own.
In 10 Gray defendant filled up lot and
gave the surface water new course, and it
filed up the well of another; held, no action
lies. Streets may be closed up by legislative
authority though the act Injuries property
holders therein.
Afternoon Session.
Mr. Wilson resumed at 2 p NJ. He said:
Naturally immigration to the mines in the
early days came up the Sacramento to the
mouth of the American river, and those who
came overland came directly within the water
shed of the American river where gold was
discovered. They turned up the river bed and
dug out the banks, and had to go often be-
low the river bottom to get at the gold. So
the compact river bed was broken up by q
vast number of people. So, too, all the
slopes of the mountains were dug and washed
wherever the presence of gold was suspected.
A great number of thousands of people were
vast extent of the labors Of this vast number
of people in turning up the soil. Add to this
the digging for roads, for ditcheL for rills
leading to mines, the storing and bringing
here and there Of water from all directions,
etc. For a nulnber of years all this kind of
work went on. Nor can anyone deny the
effect of all this digging up, added to the
building on excavations for house fouuda-
tions etc etc. So, when the floods of 1862
came, what did they find ? While this whole
watershed was broken up and ready to be
further loos seued and washed down the
streams? Yet all is laid at the door of
hydraulic mining, though placer mining for
twenty years had prepared the country for
just what happened. Now, this charge
against the hydraulic mining is unjust and
AN IMPosTURE
On the Court, as counsel for plaintiff woul0
put it. For all these things they give the oe.
fendant no credit, hut charge the whole con-
dition of things-the result of twenty years
of placer digging and washing, of soil-ti,ling,
ditching, etc.-.o the defendant in this case
at the doors of the pioneer miners is to be
laid the looseniug up of the beds of the
rivers and the slopes of the hills, and not at
the door of this defendant. So when, in
1862, Smiths gardens here at Sacramento
were destroyed, it was the result of the action
of torrential stream. added to which was
the Work OF the placer miners tor so many
years, now as impossible to find as the cru
saders who crossed Europe for the Holy
Land. What was Sacramento A pcint Of
departure for the mines at first-no more.
Located in low flat, its situation was signif-
cant. Each fcod left its debris, and il was
to be expected that d. posits would be torn
from the canyons and deposited in the val.
leyE. Then came man to aid nature in its
work. so that when the floods of 1862 came
the effect was no more than should have been
expected, from the topography of the whole
country. Why, in all the valley there was
not single Mission" Those wise old
builders, the Jesuit fathers, knew, on
looking upon the country, just where
to, and where not to, build. But
still another agency came into play.
The forests were being cut eff, the earth ex.
posed, and the action of storm and torrent
directed upon the surface. Mr.. Wilson here
read from Reclus on the disastrous effects
that result from the cutting eff of timber
from the mountsin slopes. The trees caught
and retained much Of moisture aided by
their roots, its retention in the soil held back
the SHOWS and rains, protected lesser vegsta-
tion, etc. But the trees, improvidently cut
off, leave this earth bare. unprotected, and
IL