Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-07

uelSluAlE WAS pfCCtcOSA SuH tA6
Court held that the defendant was only au-
thorizsd to nee the water, and was not com
| pslled 10 DO so, and therefore as soon as the
water became nuisance as used by the de-
fendant the defendant must be stopped from
further using it. So here, whatever rights
and privileges the State and United States
conferred on the miners in California, both
Governments always jeslcusiy guarded the
navigahle rivers. and never oonteml lated
any injury being done by them under
color of any grant to the miners.
Agriculture began in California before 1880,
and immigration he'd ses in before the dis
covery of gold. as Marshall. the discoverer OF
gold, himself testified. Defendant must shcw
that it is i,apossible to prevent tho nuisance
complained OF by any exercise of skill and
care on Its part, and that it has exercised all
possible skill and care to prevent the damage.
On the question of custom ore r, quisite il not
shown, to wit, certainty. Is it to Fill oge or
five rivers-to put in one or a dozen hills
All the authorities show that the customs of
miners must be confined TO the mineral dis
tricts alone. The miners cannot by their
customs leeislate for commerce., agriculture,
and all other interests and sections.
Afternoon session.
Mr.. Bayue resumed, and read from a num-
Der Of authorities upon the question Of Gus
tona. He then referred to the question OF
priority of appropriations, aud claimed the
rule to be that it depended on absence OF
title Is Am. Rep, 242; Cal, lbs, and Yale
on Mining Claims, etc., ITO ~ Counsel
says that the lcnd ipjared here was swamp
land, and it was right to cover it up, and de-
fendant had license to do So But could
the State srant license 20 violate trust
such as existed under the grant of the swamp
lands, a trust from the Government 20 the
State, for the Government granted the swamp
lands to the State for the purposes Of
reclamation, not of destruction. In
the Black Diamand coal mining
case the Supreme Court Of Califoraia held
the defendant must take care of his refuse
matter and not permit it TO go down and in
lure one below it, Here the defendant ad-
mitted it can take care Of it's debris and we
say do it. Defendant says great capital is
involved in their work, end that the necessity
for their work exists, and that great interests
are at stake in the matter Of mining. Wood
on Nuisances Gays that ere cannot so on aud
create a nuisance, and in doing 30 expend
great sums, and then plead, when attacked,
that large sums axe involved that the stop
page of the busine5s viii ruin him !; that great
interests are at stake that when be began no
one was near to be DAMAGED, but have come
TO him since that what he does is necessary
to be done in order to carry ~ his work, etc,
for if he is committing nuisance and plain
tiff Is injured, his work must stop.
SIC UrERE TUo, ETC
In PENNSYLVANIA Lead Company 3 appeal
III Repr., 2l7) defendant took all precaution
for the escape OF the fumes from it's works,
which were large and of the most costly char.
acter. The Court said shat the rule, sic tttere
f1,n of al nd - a.
difference that defendant had expended great
SUNS on his works the rule would be applied
irrespective of those things. Defendant says
it's monitors each do the work of eight, ten
and fifteen men, and thus they have run out
labor and not promoted it, and whole lcceli-
ties are lightly settled, as result, where 9TH
erwise there would be great numbers. In SO
Pa 81. Reps, Sanderson vs. Pennsylvania
Coal Company, counsel found an inter-
probation of the case in 81 Pa, cited
by Mr.. Wilson, and in opposition to
that gentleman's view and opposed to
the claim that defendants have right 60 pol
lutte streams by using them as dumping
grounds. Also, that in the case he cited the
defense was that vast sum was locked up in
the works and that vast interests were in-
volved, but the Court there, where S40. co.,
600 were at stake, and but ons individual
was injured, gave relief. Here is the State
of California, for large number Of her citi-
zens, complaining that their natural means of
transportation are about 10 be ohliterated,
their lands eoniscated ard their industries
destroyed.
A. p. oATLIN
Then addressed the Court fer defendant.
Plaintiff bases its strongest argument or the
claim that defendant will continue to do the
alleged damage it is now doing. They say
the great floods did no il Jury, but brought
y Ina tl.aN I,.,,
Why do they say &c? Because the mining
done by defendant siuce 1878 is the character
of mining being done by defendant now, and
confess that quartz and sluice and drift mir
ing are not ipjuriouJ-that they are not nui-
sauces. The Hood of 1862 did DO most of the
damage here complained of. Counsel re-
viewed the testimony of Routier and Rooney
to show that the former testified that the
food of 1861 2 brought tho sand and gravel
down on the land. Routier admitted that
tho greatest changes were mase at his place
by the food of 1862 They ssid that salmon
was plenty going up the river before 1862
but since then they have seen no salmon in
the river. This supports the theory that the
food of 1872 did the mischief here COM
planned of. Rooney said the food of 1868 left
three feet of white sand on his place, and the
river was filed up fifteen feet also that the
north levee of Sacramento city backs the wa
ter up to the mound on which his house
stands. The deposits made by the floods Of
1862 and 1858 are all that are COM
planned OF, except such as came down by the
food Of 1881, which was less than that of
1852, but more sudden. Counsel argued
that the north levee of Sacramento backs the
water up for several miles. II is in proof
that the f1od Of 1862 brought down
THE GREAT MASS OF THE DEBRIS
Complained Of. Counsel claimed that Mr..
Sheldon was not an unwilling witness.
Plaintiff had claimed that the ordinary de-
the floods. If so then all the 600, 600 yards
of material defendant puts into the river
annually would be brought down bv sue
cessive foods until it reaches Sacramento,
Now it is obvious from all the testimony that
take al the deposits in all tie forks of the
American and in the Sacramento-the
bars have been built up from year to year
have removed portion of some, or have
changed some of the bars, but no food
ever occurred out the Sacramento river.
Counsel read from the testimony Of wit
ness Sheldon to show that the material hy-
draulicked out of claims does not necessarily
come down the river. Counsel claimed that
plaintiff had failed in every attempt to prove
the passage OF hydraulic loosened material
down the river, and read from the testimony
point, as to the matter in the American river
remaining in the stream after great foods.
AS to the very fine material that comes in
the stream, by reason of the grindiBg process
or from tie mines, it is so small as to be Of
no account, and does not materially affect the
water. As to the heavy material from the
mines, he held it was proven to be lodged in
the river above Pickering's Bar, and that it
will remain there but of eourse he did not
wish to be understood as speaking of the
result Of the work of ages.
AS TO THE NAVIGATION
Of the Sacramento river being uninjured
Mr.. Catlin next addressed himself. He took
it to be true that the American river had
the depth claimed where vessels originally
lay in 1Si9-say up as far as where Fourth
street would cut it; and thai there was deep
water in the Sacramento river in front of
Sacramento. He read from the cross sec
tional soundipgs made by the engineers and
others at the instance Of the city of Secra.
mento in 1S5457, and over which Mr.. Hoag
operated his ferry. and concerning which he
testified that he had "a feet Of waite. on his
ferry route. These something's show depths
from to 10 fest, and bar right where Mr..
Hoag says there was deep water. The truth