Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-06-13

lected to the use of mining, 30 as to allow
taliings to be deposited in them to the ipiury
of navigation. The Only thing that
can be said is that in the pros
ecution of q great industry by crest
many people the practice of dumping into
the mountain affiuents of these streams has
been followed for o long time, and that
great deal of money has been invested in the
business, in the full belief, justified to some
extent by long federation, that it would be
permitted to continue. and that extensive
villages have grown up dependent upon it.
The rules and customs OF miners and thsir
practices, or the fact that they have become
part of the common law, outside and apart
from this long. tolerated practice Of dumping
into these navigable streams, cannot affect
this question.
The practice Of dumping directly into the
navigable waters has never existed, and it is
difficult to see how long submission to the
consequent injury differs in any respect from
any other case where a community has tolera-
teo nuisance for long time. In other
WORDS the defense is an ingenious attempt to
evade the rule. Nullum tenpas occussi real.
inc evidence OF acquiescencs Is long endurance.
Inc nischief, however, as has been said,
was not Immediately apparent. An action
couio not nave been maintained, for lack of
evic ence OF injury, for many years. A pub
lie wrong is not made legal, and certainly ac
quires no vested right to be perpetuated from
long forbearance. There being no obaupe in
the common law, the cese would be RENTED
to the ordinary defeuse of the Statute of Linn
itatiors.
have concluded to 80 find that when the
heavier debris is completely impoupded min.
ing may be resumed, virtually refusing to
hold that the plaintiff may epjoin such op-
eratiops as only corrupt the water with mud
and 1ooo ;kob f~- 10 4
other uses. Perhaps l am somewhat moved
to this by the consideration that otherwise
mining can never be prosecuted at all. 1t
will probably be impracticable to impound
the lighter portion of the sediment. I confess
shrink from a consequence so far.reaching.
1t seems to be a conceded fact that this
is not materially injurious either to
navigation or the riparian lands. Counsel
denied that there was any intention to assail
the prosecution of drift seam or quartz min
ing. There was no material injury from that
source. The sediment from such mines is Of
the same character as the material which
cannot be wholly impouaded. Perhaps this
will not materially add to the permitted evil
The authority of the Attorney General to
bring the action in the name of the people
has been called in question, and may become
serious question in the Supreme Court.
Practically it was made only on the final ar
gument. Under the circumstances, do not
doubt the propriety Of my referring that
matter to the Supreme Court. If the point
were sustained and the case dismissed, in the
event of reversal q new trial would be nee
essary before the vital questions involved in
the controversy could be presented to the ap-
peilate tribunal There have been may cases
in that Court brought by the Attorney. Cen
eral on the presumption that such power ex-
lists. No question of authority VS. made
A trial Court, under such circumstances, may
well follow the practice until precedent is
formed. ]. TEMPLE, Superior Judge.
June II. 1882.