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

But 1t Will be remembered, your Honor, upon
looking the facts OF this controversy that 1t Is
not charged in this case that the miners have COM
mitted nuisance. 1t is not urged in this case that
they ever committed crime. Ii is chsrsed in thls
case and sought to be established by circumstances
which we think carry con lotion, that those Things
which they have been dong so long, permitted e
continue, will result in the creation OF public nui
ssnce. But these men who claim the right to CON
tnue these acts are not therefore, guilty OF aoy
criminal acts No man ever thought to charge on
them wrong, wilfully done. 1t becomes but 8
legal question: question Of right. And IL Is
charged in this that il will be
come a nuisance, and therefore the Court Is
asked, in the exercise Of its equitable powers te
prevent these men from doing this thing which We
say will create nuisance Now say 1t is nlS'te'
that is extremely strange to me that the cary
miners were looking forward to this very case
They were building their industry as mining com
munity Counsel says that no man that ever hSeS
in county could ever succeed IN beihs consul
cred of any impor ance. They we're LOOKING out, ht
said for the inter- st of the miners they considered
only the miners we're the men TO be protected, anu
they never looked on these beautiful valleys
Sacramento. the San Joaquin, Santa cara ana bo'
Angeles-as being places that were 10 oecouie PEI
naneuty inhabite ed. They were looking out Tor tht
extraction Of gold And in thst view counsei see b.
to establish that common law has grown up ~hicf
is the result Of legislation, most OF when con
fessedly and great part OF which in fact II M
views are correct would be in contravention OF tn,
Constitution which those miners had made And
say it is an interesting fact that, with these thing
in view, they Snoulu pToNlle tuat All tuS uaN'kap
streams within the said State shall be
COMMON HIGHWAYS,
And forever free as well to the inhabitants Of sale
State as to the tzens Of the United States, with
out any tax, impost or duty therefor" We do no
object to any mining that they may do. We arr
not vbjectiDg to the pursuit of this industry. W.
are Directing the obstruction of the States nav
gable streams. We not Directing to the placing
of their debris in the canyons Of the mountains
We are not Directing to the damming OF the Amer
river If they want to dam 1t in the canyons anC
gulches throughout which it runs torrentlike dowT
into the valley. We are not Directing to the pur
suit Of this industry In any sense. But we are say
ing to them, "You are damming our nsvigabli
streams, and seriously, severely object to The
encroachmept. We ask you that you may cease y
dam the navigabe streams; We ask you that yor
may permit these arteries of commerce to remain
open We ask you only that you shall desist from
the destruction of our valley. We concede t. yot
the right to build your brush and your stone dams
in the mountains, if you want to. You may con
denim the eptire area of tho Sierra Neyadas
You may resort to the plans which coanse
| named to-day, and by which, he said, fol
one dollar out Of every four hundred taken
from the mines you could prevent these injuries.
We say to you If you can do that for 81 in every
$500, In the pame Of God do so now, because you
are destroying our navigable streams our homes
and our valley here. This is the thing TO which We
object"
And yet counsel comes into this Courtroom and
says that by uniform and universal legislation
looking absolutely and all the time ia one direction
this State has been Recognizing policy which per
mits, what? The thing object to-the dammiug
up OF the navigable streams and the inundatiou OF
the homes OF those who reside along their blnks
We say that il that is true, if their idea at that
time was that the great prevailing and overshadoT
ing industry en- this coast consisted in the extrac
ton of precious metal from its vast belt Of god
bearing deposits why was it that these men, shrewd
counsel seems to consider that they were, far
reaching in their observations OF what was to come,
came to the Federal Government and, in their indie
pendent petition for admission among the ssterhood
OF States ceded away in the Act Of admission tht
very right to the maintenance OF which they assere
that the entire legislation of the country had been
directed? Why, the reason is obvious Counsel
himself must have seen it. The calm of the
miners at that time was and always has
been, an honest claim claim to do that which is
a legitimate and proper thing claim to extract
the gold from the mines. Aud il has been but q
few years snce il discovered that this mining
industry, carried on in the manner in which it is
resulting in the obstruction and destruction OF
the navieable streams.
And hence II was, whatever may have been their
customary rights as derived from the Mexican laws
that when they, by this Act admitting the State into
the Union, abrogated all laws that were in conflict
with 1t, they of themselves undertook that these
streams should forever become and be and remain
free and open to navigation.
Now concede-and we may concede it for the pur-
poses OF this argument-that these customs had
grown up; that as to all matters about which there
has not been legislation these customs became the
law, and that the common law has never prevailed
in the mines. We NAV admit all these things to be
true; we may admit that by the customs Of that
country this mining industry was made the para
mount industry that everything must fall before
it; that they might destroy property; that they
nized in all civilized communities; We may
admit - which | deny that in that coun-
try they might legalize illegal, a
criminal thing, by custom, as has been urged in this
case and yet whatever those customs might have
been. when this State hrOuVht int0 the Union
under compact between thu Federal Government
and the State, in which they mutually and together
surrendered ali rights which they had 10 Distract
nayig gable streams, and each pledged itself to their
maintenance for the purposes of navigation, they
then, each and both, surrendered every right which
counsel in this might have claimed by virtue Of
custom; surrendered every right which they might
have claimed under the laws OF this State in the alb
seuce OF an enactment Of this kind
There is a case in Howard to which desire to
call your donors attention upon This subject. II is
the of Pollard's lessees. And will cal your
Honor's attention to the fact that the Court were
there considering statutory provision (admittlng
State into the Union), which they discussed as a
compact. Now asserted moment sgo that this
Is
COMPACT;
That this is an agreement between the State and the
Federal Government that by this the State SOL
EMMY, and III the proper mode and form and by the
proper authorities pledged itself to The maintenance
OF such things as it agreed to in the Act Of admis
sion. 1t was contract, a compact, between the
State and the Federal Government. And make
this argument with view OF establishing this That
by that compact the State which prior that time
and independently OF this Act of Congress, would
have had complete and absolute control over its
navigabe streams, and for that reason might have
allowed by custom or prescription the growing up
OF right under which these parties mig hit hayt
damned those streams, or might by legislation have
granted the right to dam them, when it submitted
TO this compact or agreement between itself snd the
General Government, 1t became bound, by all rules
all nf into
and justice, to see to the entire and complete and
perfect compliance with the stipulations contained
in that compact. And In this view, speaking of it
as duty, 1t becomes duty on the part Of the Off
GERS of Government. II it be duty OF the State,
upon my shoulders in this case rests the duty Of
performing it for my principal
| state this last with view Of making your Honor
understand Counsel seems to object with such ex-
IRENE severity TO the commencement of this acton),
that, il my views OF the law right in this case,
there can be no lodging this responsibility that it
becomes the duty OF Government, and that duty OF
Government devolves upon the proper officers OF
Government, and those proper officers Of Govern
ment are bound under their official oath to see to
the enforcement OF these agreements and stipua-
tons.
In the discussion Of propoti.ion as said before
similar to the at bar, the Supreme Court of
the United States, in Pollards lessees Hagan 8
How, U. S. 22S. Justice Mckinley, delivering the
opinion OF the Court, said
Alabama is therefore entitled to the sovereignty
and jurisdiction all the territory witain her
limits subject to the common law to the same ex-
tent that Georgia possessed it before she ceded il
to the United Sta.es. To maintain any other doc
trine Is TO deny that Alabama has been admitted
into the Union equal footing with the original
States, the Constitution laws and compact to the
contrary notwithstanding. But her right OF SOW
eregnty and jurisdiction not governed by the
common law OF England it prevailed in the colo
MES before the revolution, but modified by our
institutions. IN the of Martin and others Wad
dell, l6 Peters, 40, the present Chisf Justice, in
delivering the opinion of the Court, said When
the revolution took place the people of each State
became themselves sovereign aud in that charac-
ter hold the absolute right to all navgable waters
and the soils under them, for their own common use,
subject only TO the rights surrender by the Con-
stitution.' Then to Alabama belongs the navigable
waters, and soils under them in controversy in this
case, subject to the right surrendered by
the Constitution to the United states and
no compact that might be made between
her and the United States could diminish
enlarge these rights. The declaration therefore,
contained in the compact entered into between them
when Aabama was admitted INTO the Union, that
all navigabe waters within the State shall forever
remain public highways, free to the citizens OF said
State, and Of the United States, without any tax,
State, would be void if inconsistent with the Con-
stituton of the United States But this provision
repugnsnt to the Constitution? BY the eighth Sec
ton OF the first article Of the Constitution, power is
granted to Congress to regulate commerce with
foreign nations ard ameng the several States Ii,
in the exercise OF this power, Congress impose
the same restrictions upon the original States in
lation to their navigable waters. as imposed by
this article Of the compact the State of Alabama
then this article is n mere regulation Of commerce
among the several States according to the Constitu.
ton and therefore binding IN the other States