Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-04
"a WAY. OF NECESSITY. "

WAY, OF NECESSITY"
That cannot be as to lands of the United
States. The State could grant no such right
The doctrine of "a way, of necessity" can.
not apply In this case for the purpose OF dis.
posing OF materials ont of which the metal
has been taken. Possibly farmer cannot
| cultivate his farm as easily or pro6tably I'M.
! less he can turn his sIops upon his neisbbor :
but that would not be "a way, Of necessity. u
How can way. Of necessity, be claimed here
for defendant that will not apply to every.
| thing else. Bot if it were so, and such a
thing became a matter of grave injury to q
large number of people, il is a nuisance and
must be abated. 1t can give the miner no
greater right than he is entitled to, who has
for years owned and occupied his land and
enjoyed it, and as against whom the act of
defendant is a nuisance. As parailelisms,
counsel cited the slaughtering of cattle for
food, the trying of fat for tallow, the making
OF chemicals, etc., all useful and important
industries, and none OF which can gain
right to continue . nuisance. Counsel cited
the case of q butcher IN San Francisco.
who went far out from all habita.
tions and set up the business of slaughtering,
and the city built up to him after twenty
years, and the people claimed be was main
tanning nuisance; and though he pleaded
that for a long time he had been in business
and it was no fault of his that they did so,
ETC., yet the law compelled him to stop his
butchering there. (Ex parte Shraeder.) How.
ever innocent the mining of defendant was
once, the question is as to IT'S present acts
being such as to make an intolerab.e nni.
sance now, though for years no one CON-
planned. De rule that applied to the butcher
applies with the same force to the miner.
OR, SUPPOSE,
| live on the banks of tidal marshes and the
stencil from decaying vegetation and animal
matter is intolerable. There comes a chemi.
cal manufacturer and sets up near me a
chimney that belches forth sitting fumes. |
complain. Could it be claimed that it is
sufficient answer for him. and good excuse
to reply, why notice how the air stinks
already! So If the defendant adds to the
nuisance it is responsible.
EsToPPEL.
Counsel says defendant can RELY on the
delay of the State to act on this matter, and
that it is now estopped. Now there is time
in the history OF all lands when something
becomes so intolerable that it can no longer
be borne, and some one at last complains
Now can that wrong become q right because
it was not resisted at the first. No. There
is no estoppel because the injury Is recurring.
and the lawday by day gives therightof action.
The law furnishes no basis for the plea of
estoppel in such a case AS this. We
have invoked the strong arm of the Law to
arrest threatened injury. is not the land
that has been rendered worthless, but the land
threatened with destruction, the filling of the
lower lands on the margin of the rivers with
sand, SO that they will be unfit for cultiya-
ton for 100 years, the pushing of the stream
over toward the tule until the channel has
changed. They have gained no right by the
tolerance OF the plaintiff. The State might
have spoken earlier to preserve the naviga-
tion of the Sacramento river but her silence
gives no further right to further damage it.
We say stop now and do no more injury, ir.
respective Of what you have done in the past
DEDICATION.
The doctrine of dedication was very bsauti.
fully presented by Mr.. Wilson. and I really
thought once as 1 listened to him that all the
ri yers and creeks and riyulets clear down to
the bays had really been donated, given, sur
rendered, all these things, as dumping grounds
for hydraulic miners. But cool examination
of the law settles all doubt. There is nothing
in it. The Government would have to do
some affirmative act to dedicate. Ii it has
dedicated one stream it has given all-there
is no halfway business about it. Was all
the water and all the timber dedicated as well
Judge Rhodes said his colleagues would
discuss the question of dedication more fully.
AS to the Mexican law prevailing in the
minds of the early miners, SO as to lead them
to base their rules and regulations thereon,
he doubted if they ever thought about, or
any of them ever knew anything about, Mex.
lean, or Spanish mining laws He has as
much authority for disbelieving as Mr.. Will
son had for advancing the idea. AS to ri.
parian rights, counsel could not see how any
riparian right of the defendant gave tbs
right to ciscolor the water of the river and fll
up its bsd and foat down tailings. They had
G right to g reasonable use ef the water.
But they did not use the water of the river
to niue they used the bed of the river
as q dumping ground, ard that is not ripa-
rian right. As to the question Of misjoinder,
the plaintiff could not Go otherwise than sue
one, says the Supreme Court. Now because
there is difficulty in showing just what dam
age each one or any given one does, is no
reason that one should not be restrained from
contributing to the injury If this was g
question between 81. 500 mine. and 81, SEQ
farm, even the defendants Counsel would
have no difficulty in declaring the right prin-
cipie in this case. 1t is the magnitude of the
interests involved that obscures their view.
Judge Rhodes then addressed himself to the
Chippewa river logging case, cited by Mr..
W iAooos pha eshN l1oSSiitS "tso pdFJ VI
commerce, legitimate business on rivers in
lumber regions. The State, without inter
fering with the power of Congress TO regu-
late commerce, may make rules and regula.
tions as between its citizens concerning the
use of the rivers. In conclusion, Judge
Rhodes referred to the magnitude of the in-
terests involved in this case-so great as to
stagger one who looks upon them. He felt
that the Court was competent to pass upon
the Issues, and he felt confidence in its
anxiety to weigh all the law and
the facts. and to fearlessly do justice.
He asked if it is possible that this thing of
filing the rivers, destroyiog the lands and
depopulating the valley shall go on? When
shall the end be? Shall it go On till the
mine is exhausted and the land ruined? Ii
so, we shall have neither mines nor lands,
and it will have been demonstrated that Gov
ernments are established for the purpose of
injufing the inhabitants they should protect.
The Court then adjourned until Monday,
to-day being legal holiday, but Judge Tenn
pie will informally hear counsels remarks to-
day. In this manner the argument goes on
and the legal holiday is observed.