Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-02
DEBRIS.
FIFIy.FIRsr DAY OF TIE sLIoKENs
CASE IN COURT.
ontinuation of the Arguments of Counsel
Before Judge TempIe-Mr. Wilson
Opens for the Defense.


Before Judge TempIe-Mr. Wilson
opens for the Defense.
Tn the case of the People VS.. The Gold Run
Mining and Ditch Company yesterday, at $50
A. NJ, before Judge Temple, Mr.. Cadwaladsr
for the plaintiff resuming cited the case of
Robinson VS.. Ths Black Diamond Coal Com
pany, where, In Contra Costa county. the
lands of Robinson, the chief hydraulic miner
in this State, were damaged by coal screen
ings and refuse from defendant's mine, which
dumped into ravine creek leading upon
plaintiffs land. The defendant claimed that
it did not do the damage, but that if any
was done it resulted from the laws of grayita-
ton, by which the matter descended to the
lands. The Court held that the refuse mat
ter was in the creek as the result of the act of
the defendant, and though the defendant was
not responsible for food.waters coming on the
land it was responsible for the substances in
the water placed there by defendant. The
Supreme Coutt Of California last year main
tanned this view, and said the holding did not
touch the right Of defendant to prosecute its
business, but the defendant must take care of
the natter brought ont in that business and
not 80 deposit it that it will by action of the
water descend upon the lands OF plaintiff. So
here Robinson, the chief hydraulic miner.
sues for and secures ruling that estops him
in this case from holding contrary view.
A PENNSYLVANIA CASE.
About the same tims in Pennsylvania
case came up-Mrs. Sanderson VS.. the Penn
sylvanta Coal Company-for permitting the
accidental dieclarge from the mine to flow
into creek and upon her land. The case
was decided in May 1881. The defendants
there held that coal mining was the great in
dustry and must be prosecuted, and great
damage would result if they were checked;
that they had used the stream forty years,
and that they put nothing foreign into the
water, but it was az it had come from the
mine, and it simply followed the laws of
gravity But the Court held against them,
aud plaintiff had judgment. The Supreme
Court held that the direct act of the mine
polluted the water, and though the act
drained the mine and was in prosecution OF
great industry, still it was not public work,
was private enterprise for gain, and the de-
PENDANTS cannot therefore take the property
os the citizen, as it does when it deprives her
of the use of the water of the stream by pol
luting it. And this, though the general GUS
tom was pleaded to use the streams to carry
off the OVERT wv of the nina. Such custom
cannot prevail for if IL does it is in conflict
with the Constitution guaranteeing therights
Of riparian owners, and with the principle
that the property of the citizen cannot be
taken FOR 3 private use without compensation.
ENGLISH CASES.
La Attorney. General VS.. Richard e Anst.)
it Yves held that an embankment hurtful to
harbor, though maiatained sixty years,
should be abated, because the II sht Of the
Crown t. the sea ports is undoubted. La that
case is another cited where navigable river
was eHcrosched upon, and the Court ordered
it abated. So in another, where houses were
so built on the river as to strengthen the
stream, it was held to be an encroachment,
and the chief Baron held the soil TO be the
property Of the Crown, and that the nuisance
must be abated. At common law the Attor-
ney Generals authority was. so far as suits
in equity were concerned, inherent to sup
press public nuisances. This was treated OF In
People vs. Minor q Lansing, N Y, 1861,
ard it was there so stated also. In Attorney
General vs. Litchfield 13 Simonds) it was
held likewise (reading). Acknowledgement
vs.. Forbes, another English case, holds like
wise, and says that doctrine is well settled in
England. When number of persons sus-
tain an injury, and no one special injury,
the Attorney. General alone could proceed.
But it is held by defendant that the State OF
California has prohibited the suppression of
PUBLIC NUIsANcEs,
And that there is no one who can protect or
sue to protect State right. The Legislature
| C mot do it. as it has ne executive authority.
All it can do is to provide rule for the sup
preston Of public nuisances, and that it has
always main tanned and its legislation has al
ways been perfect. Ithas done all that is in
the power of that department to do. The
Legislature can't say MIR. A or d shall stop
| mining The Government cannot do it. But
the Legislature may provide the rule, and did
in 1850. So the State is in the proper forum
to-day, in the Court, asking the
enforcement of the rule by tho Ju-
diciai Department of the State Government.
| Wood on Nusances holds that the suppression
Of public nuisancas is an equity power that
has been longest exercised and the best SET
tied. Time does not sanctify e public
Nuisance, nor does its lapse take away th9
right # the State to come into Court and ask
for abatement. The only questions are,
| Dces a public nuisance exist? Do the de-
PENDANTS contribute to it =? In 90 II. II the
Attorney G eneral ag sinst a fish company, for
putting an obstruction in a non-naVigable
stream without fish-wly for The Ash to pass
up, as customary. Il had been maintained
there twenty Year,. and the question was.
had il gained a right by user: CommIoi-
ties do not assert their rights as visiantly
az individuals do, said the Court,
and hence the limitation to such is not so
brief as to individuals. The people cannot
act in q body, said the Court, and the people
as individuals do not speedily take notice Of
public injury. 1t is the policy to protect the
public rights. said Judge Story. and the rule
as to the King applies in the United States,
where the people are the sovereign. That
doctrine prevails in Californis, as no title
can be acquired by prescription to the streets
Of a city, and that is because OF the doctrine
that
TINE DOES NOT
Destroy public rights. So it has been held
that proof that stream was once navigable
was sufficient TO make out the case Of the
State in the effort TO enforce its rights. Re-
turning to another point already referred to,
the value of hydraulic mining, Mr.. Cadwa!-
adar pointed to the depreciation of values in
the Comstock mines, and said it was in proof
tn IN ia the mining area of American river,
Wells, Fargo & Go. had been compelled to
withdraw their lines because few corpora
tions seiz ID all the waters, and all workers
except fer three or four corpor .tions were
driven out. and but small other population
remains. That is Q result OF the corporate
hydraulic mining system, THAT begins by
taking all the clear water of a section and
thus driving away the people or holding them
away from it, OF by SO using the water as to
pollute it and make it unfit for use. Ii the
State shall make this mining oligarchy let
go the throats of the streams of the STATE.
nothing but good can result to the State.
Cooley on Torts says no lapse Of time can
confer the right to maintain public nui.
sauce also (6l3) considerable number OF
people. in the name Of the State. may pro-
test and proceed to abats the nuisance.
Douglass, East, r. L Me-, n. Y, L. and
Early. Ala. and Mass cases are cited in sup
pert by Cooley Mr.. Cadwalader read from
other cases.
THE TORT,
In such case as this, consists in committing
the matter that does damage to the stream IA
number of cases cited in support). Cooley
says that nuisAnces that threaten calamity
may be abeted one cannot do that which