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

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through the mountains, and also along the banks c
ony creek, aid Chico, and other creeks that ar
! tributaries TO tie upper Sacramento; that on tn
hlsides IN the mountains through which the u,,pe
Sacramento and its several tributaries rln agrcui,
ure and stock. raising and all the OCCUPATIONS b
which the other side claim that natural wash ha
| been increased on the American river have beel
carried to very vast extent 1t Is also in exi
dence IN this case that, IN early day and befor
! there had been any mi ing upon the streams tn
Feather river was as clear the Sacramento ant
the American river was clearer than either of tn
other two. Now, why is thiS-what great CHI anpl
in nature has taken place since the seltlemen
of California which has caused the American AMI
the Feather rivers to become fill ed with debris am,
which has left the Sacramento above its junction
with these two rivers entirely free from mud an,
slickens Besides, it has been proven in this cas-
by the TESTIMONY OF l.. L. Robins0n-one of the de
fenfants witnesses and is a propositior
founded upon the plainest principles OF common
sense, that
NATURAL WASH
Never fills river; that natural wash always goe.
to the mouth of river aud forms its de ta and thai
in the history of the world there is not to be found
one case in which river has been filed by natura
erosion Now, that proposition is result Of oul
cOmmon-seuSe observation beeause the mate /,
which will be taken from the tops OF the noun
tans, disodged by the falling If the r1in is necessa
riy the light upper miterlal which will be rried
in suspension in the water as long as the current
runs, and until 1t meets with some obs ruction or
Cache creek if we take that rs an illustration II
has carried vast amounts Of sand because it runs
through mountains which are very sandy, and
which more liable to natural erosion than the
mountains through which the American river runs
There the sand is carried to the end and forms its
telta, and it is in evidence in relation to that creek
III the testimony OF Mr. Treadwell who is man OF
fine ability both as lawyer and an engineer that
he has actually the water of that stream carry
a rock that weighed more than thirty tors down
the canyon through which it runs That stream,
has always carried clear water and it is at this time
with all its natural erosio clearer than any Of the
valley streams OF California that | have ever seen
1t is not muddy river like the American and like
the Sacramento river below its junction with the
Feather, and the resson that it is clear is found in
the fact that it carries this natural erosion as the
American and Sacramento rivers would but for min.
ing, only during times of high water and extreme
rains in the mountains.
Now how is it, il these rivers are muddied from
natural erosion, that during the dry season of the
year, when but small quantities of water
are carried, and when the streams con-
fine their water to their rocky beds in the
mountains, how is it that at such times they carry
such an immense amount of debris and such muddy
water? Where does the mud come from? Does il
come from the hillsides? Is the water running
down the hillsides then ? Is the natural erosion
going on :? Unquestionably "No." simply say II
is idle and absurd them to undo rtake to say IN
this that this filling OF the rivers is the result Oh
natural erosion
But they say, and Mr.. Hamilton Smith said (,nd
his testimony perhaps has been very fair in making
his estimate and it is rot to be assumed that ht
would place it higher than it is) that this mine
would not put in more than ,0OO clbic yards Q
year. Concedlng, for the purpose OF this argument
that it does not put in more than
100, 600 CUBIC YARDS
year, and concedng the vast amount of natural
wash that is claimed in this case is that a defense
to this action? Upon what theory would they de-
fend against this aetian even concedng that to be
true? Upon what theory is that defense? II
might be defense in the sense in which it would
have been defense in the celebrated story OF Sum
merfield, written by CaXton, some time ago, where
il was claimed that by some process OF ctemlstry
Su nmerheld had disco rered means by which the
world could be destroyed Ii some one had under
taken to stop this fellow from burning the rid W
if an injunction suit had been brought
against him the ground that he
would DO irreparabe injury, his response would have
been THAT according to al theories, and even &C.
cor1ing to the Divine Work itself, this earth was
doomed to inevitable destruction, and hence he
would claim the right to destroy it Immediately. 1t
si kes that if this valley is doomed to destruc
tion if this river is doomed TO destruction if
property is doomed to destruction it becomes the
Government, in the exercise of wise policy, to un.
dertake to do those things which Will as much re-
ard that destruction as possible, rather than to
permit parties by artificial means to accelerate this
destruction which they claim is inc, liable.
Mr.. Wood, page lis, III his work on Nuisances
speaking of damage from natural ciuses, aud stat
ing the rule, as / understand it to be, correctly
says: And thus it will be seen that a nuisance
would not arise from the neglect of TO remove
that which exists or arises from purely natural
causes But when the cause is traceable to arti
fetal causes or where the hand of man has in any
essential measure contributed thereto, the rule i.
entirely different. broad difference exists be
tween natural and artificial causes Of injury There
are some cases in which the Courts seem to have
lost sight of this distinction but it may be regarded
as
| UNIVERSALLY RECOGNIZED DOCTRINE
OF the Courts that liability exists for all damage.
resulting from unlawful acts but that liability never
exists where the damages are merely the result o.
natural causes, unaided by the act of man."
The rule then seems to be-aiid I presume there
will be no controversy upon the questionable Il
defendant has materially contributed to this dam
age which, it is said largely the result Of natura
causes then and in that the injunction prayed
for should ISSUE
What, then, is material contribution to this
damage? How much is it necessary, according tc
their theory, for the defendant to accelerate this in
evitable destruction in order to make II material
con,iibutiona How far, in other words, under the
policy of our Government, would it be permissible
for to aid in the destruction Of either civil
government or Of the face Of the earth, without
which civil government cannet exist? How much
may he contribute towards the eventual destruction
either Of the valley itself of the rivers that sup
ply the valley with its commerce, that supply
the valley with its drainage, before his weulC
be held to be materia. contribution In determin
ing this question it seems to me- your Honor tina,
it becomes necessary for to take into considera
ton THE entire injury which We charge to be
nuisance and to resolve it into its several elements
to determine the amount OF destruction of injur,
from natural and artificial causes combined anC
then to ascertain what is the amount Of contribution
from artificial sources alone
Counsel on the other SIDE i'll the discussion Of tn,
case Of
KEYES AGAINST THE LITTLE YORK MINING
COMPANY,
it appear that it was not based upon msjoinder o.
the parties but that l. was a decision which wen
to the merits of the case. An examination OF thai
decision will show, that counsel Judge Wallace) has
misconceived the effect Of his own decision. The
only question decid ID in that case was upon the
subject of misjoinder of parties defendant. In
that case plaintiff sought to maintain an action
against very many mining corporations, embracing
believe in action nearly all the most mportan,
mines in the State, and asking that all the defend
a. Is should be enj1ined together from dumping
their tailings into the several mountain canyons
drained by the several rivers in this State. The
Court held that while each OF the defendants might
be liable to separate action for the damage done
by him or 1t individually, all Of them together
could not be Jointly sued under well settled princi
Piles Of law, because the act Of each was his own
separate act and not jointly done with any OF his
codefendants The result of that decision Ia that il in
this the Court in determining whethera nuisance
has been committed, cannot take into consideration
the damage done by any person other than the de.
IcDuant, anu IL the Act Oi tue ueituuaut must Oh
Itself, unaided by the acts Of others, amount to a
nuisance. then the rights of private property while
secured by the boasted principles of Constitu
ton, must be entirely insecure account OF the
inc ffectua machinery by which those rights may be
enforced in the Courts. Such construction OF that
decision would place parties whose property had
been injured in about this condition A, b. C and
each do things which, combined, result in a NUS
to destruction of private property, In the
obstruction of a navigabe stream. cannot be
sued because he contributes only to small extent
aud without the acts of b, c and D. AS act would
not amount to a nuisance. cannot be sued, be-
cause A. and d must contribute their several dam
ages in order that nuisance may be created. The
same may be said of each Of the others, so that
separate acton is given against either, while
it is conceded that the acts of all com
Then, says the highest tribunal in the State after
the party had tried Intellectually to hod each Of
those parties severely for the damages They dc
contribute to the injury, bnt you cannot sue all
these parties together, because did thing and
d did another end another, and A is not response
bic for what did and is not responsible for wha,
did" The result is that there is wrong there is
property, there is destruction Of the river and
remedy is provided because the Courts the ma
chnery established for the protection If public and
private rights have denied to the party the right to
bring action again,t the elements combined
which create the nuisance and the injury against
The result of that would be that by con.
sp.rncy Judge Wallace, Judge Rhoads, Mr..
Bayne and myself may destroy your Honor's
property; by conspiracy we may destroy
the rivers OF the State by conspiracy may main
tain a nuisance in the State and unless there be
evidence OF that conspiracy, unless you 90 into
the secret plans which resulted In the final consum
I - III l. l.