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

any degree, it is liable. In the Richmond
ease, 10 +. l., 106. the Court says il is no
defense that others muddy the water, or that
plaintiff might filter it.
STRONG CASE.
One of the strongest cases is Just at hand.
Ii it was this case it could not be stronger in
statement. Il is a recent case, and exactly
fits all the conditions of this cne. 1t IS the
case of Wilder VS. Shafer, Court of Appeals,
Maryland, April term, 1881 ;" Maryland Law
Reporter" of August Y, 1881. Defendant
kept a slaughter. house, and had enjoyed the
privilege for thirty years That his eontYi-
button was inconsiderable to the nuisance
that hosts of others above him created it and
put in offai, brewery refuse, sosp.fst refuse,
etc that he put no solid material into the
stream and that at the least he only put in
fifteen buckets of blood per week, and that it
was so diluted it could not be of damage af.
ter passing 100 yards below the slaughter.
house; that plaintiff damned up the stream
and checked its free flow, and hence the
checking Of the current and the offensive ac-
clmulations besides that, to stop the works
of the defendant would be to destroy q great
industry. The Court sal the nuisance, the
offensive smells, the pollution of the waters,
the collection Of offal and filth was clearly
shown that blood flowed from defendant's 5
place. though in small degree. Should de-
fendant, therefore be stopped from doing this
uncomfortable damage, and whica, if stopped
would still leave the nuisance nearly as bad
as before, etc, notwithstanding defendant
had enjoyed this right for thirty years,
and notwithstanding plaintiffs dam, etc? ?
The Court replied that i. would stop the de-
fendant; that however small the contribu-
tion by him to the nuisance, yet he might be
proceeded against; that the common and
joint acts Of all those pollu.ing the stream
make up the public nuisance, though what
one DOES alone would not create it; yet each
one being proceeded against will be epjained
and restrained. That such nuisance is a
constantly recurring ore, and that therefore
injunction is the proper remedy. Il is no
defense that one drop of poison il ones cup
will not harm him. when it is shown that
others put in other drops, and that the joint
and combined result will be to kill him
That great industry would be destroyed by
stoppage of the defendant was not quss
ton, for SO, too would plaintiffs business be
il the nuisance went on. Could
stronger case than that be cited? If irjury
will result to defendant, the hydraulic
miner, by the injunction here, will
not injury result to the people Of the State
and large numbers of its citizens, and their
homes, health and industries, ie the
INJUNCTION be denied? In 81 Cal the Su.
preme Court said it mattered not if others
to the injury if defendant was
one OF them he must stop. Iu Styles VS..
La2d Cal mining claims have bean
Hooded by the breakiag of dam, aud d.
;endaDt clsimed as it was public nuisance
plaintiff could not abate, but it was not go
leld. Defendant here says it has a
PREscRIPTIvE RIGHT
To do as it is doing. Wood on Nuisance,
IA, says there can be TO prescription as to
public nuisance, and even as to effects on
private rights, it cannot obtain. (Other au-
.horities cited But to avail OF prescription
defendant must show the damage to be the
'ame only, during the whole time but here
t Is shown it is increasing yearly, and grow
ng in magnitude. They must lot claim
more and prove less. though they may claim
ess and prove more Wood on Nuisance, 706,
40, and cases cited)~ The statute of limita-
lions does not apply leases citsd) Ror is there
any dedication as claimed by defendant leases
,ited). A navigable river cannot be conveyed
10 private person it is withdrawn for the
purposes of commerce forever, and therefore
70 statute of limitations can apply il case of
It's damage. IL SO Z. s., Jennis0n vs. Kird,
The Supreme Court Of the United States
holds directly in opposition to the view of
Mr.. Wilson (readine) The sale of the mines
oy the United States was made with the re-
'ervatioa of express rights. As to dedication
Ind estcppel, it isiclaimsd that by the ac-
luiescence of the State and Federal Govern
nents the miners have acquired vested rights
In Jennison VS.. Kirk, 90 U. S 400 (constru-
ng Section of the Ac; OF 1860, it is held
that whilo the general wisdom of miners
as sanctioned by the State and
u1rII Id t,,7fh hka
i the title of the United States WAS conveyed
20 the holders of mining claims, the right ,f
way OF owners of ditchss sno canals across
.he claims, although then recognized by the
ocal customs, laws and decisions, would be
thereby destroys unless secured by the Act.
Ii defendant can claim that rights to mine
we're given or implied by the sale of the mines
% it, cannot
THE AGRICULTURIsT CLAIM
With equal force that the sale of the lands
% him carried with it the right to peaceably
md safely cultivate the soil for agricultural
purposes. The Government has given title
% lands, and of that the Court will take
judicial notice. For whatever is necessary
20 the enjoyment Of an individual grant the
anguage of the grant will be presumed
against the grantor to the extent of giving
whatever is essential to the enjoyment of the
rant. How is it as to the Government
It's grant is worded By it, and it is presumed
t expresses in it all it intended, and there
ore the presumption will be against the
,rantee. In 81 U. S, Fertilizisg Company
Vs. Hyde Park, works were located at spot
lamsd by the Legislature. They were sup.
pressed as public nuisance. The company
.er given by the State, and that
he State must protect It's license.
What said the Supreme Court of the United
States? Why, that the rule of construction
g. that it must be most strongly taken
.gainst the corporation. Nothing is to be
AIKEN not expressed, and the rule is of vital
Importance to society. ga Hor., % Wal,
l3 q. S., cited But defendant says that
~ legislation it has been encouraged, and
hat the State and United States have
DEDICATED THE STREAMS
To their purposes. In truth both Govern
nents have said, touch them not. They were
orbidden to lay hand on the navigable
streams of the State. In Yale's Mining
Claims, p. 379, il is said that Congress, by
Act, has declared expressly the sacredness of
lavigabls streams, and the riparian rights
enjoyed along the same. Our own State, as
early as 1850, and prior to the Act of prac-
lice relative to the miners rules and customs,
enacted law, ever since and still existing,
that anyone obstructing a nayigable
stream in ana manner shall pay double
damages and be fined, etc., (readiDg
the statute) And while ferries were
excepted in that Act, there is no excep-
lion in favor of mines, or to authorize
miners to use the rivers as dumping
grounds. Referring again TO the case of the
Fertlizing Company vs. Hyde Park, it is
here said where a charter had been given to
inter dead bodies in certain limits, and
\ subsequent ordinance prohibited inter-
nents within certain other limits IN con-
ict, it was held that the grant did not give
The right to maintain nuisance, and that If
population came so close to the cemetery as
% make the latter nuisance, the latter must
give way under police regulations. But even
( California had attempted to do so, she could
not have granted the license to the miners to
use them, for in the very grant of power
regarding public lands the Federal Govern.
nent, in the compact with the State, declared
hat the navigable rivers should
FOREVER BE PRESERVED AS SUCH,
And hence the State could net grant the
license claimed. The Legislature of Cali
Iornia in 1S6970 provided regulations as to
mines acquiring outlets and places for dump.
ing and for taiIings. Ii the streams were
already dedicated to the uses of the miners,
why was it necessary to provide for the con-
lemnation of certain ravines and water
courses, and paying for them 1t was there
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