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


IN the nndings of fact herein, were not in
tended to and did not and cannot protect the
defendant In the doing of the acts, matters
and things complained of in this action.
Sixth.Ihat the plaintiff is entitled to a
decree OF TINS Court restraining and enioin.
ing tne oeiendant, It's Superintendent, agents
and employees. from discharting or dumn;np
into said North Fork of the American river
| or into Canyon creek, and also from spffer;no
or causing to How into said river any tsilings
powders, cobblestones, gravel, sand. CLAW
debris or refuse matter psrpetually, or until
it shall be first shown, upon application made
to this Court for q modification of such de.
cree, that dams shall have been built in said
American river, which will prevent the
heavier portion of said material, including
the coarser sands, from coming below Alder
| creek, or until some other means equally
efficacious shall be adopted to impound said
debris, and which in the opinion of the Court,
upon such application. will certainly prevent
sand, and all heavier material than sand,
from being carried by the water below Alder
creek. j. TEMPLE,
Superior Judge, presiding.
June II, 1882.
The Opinion.
The People of the State of California,
plaintiff vs. The Gold Run Ditch and Min
| Ing company, ueIenuant.
This action is brought to restrain the de-
PENDANT from dumping its tailings into the
North Fork of the American river. It is
charged that these tailings being washed down
by the current, are deposited in and fill up the
channel of the American river below Alder
creek, as well as the Sacramento, impairing the
navigation, increasing the liability of both to
overflow, and making each overflow more de-
+! structive, causing deposits upon the farming
,1arsv how,
raising the soil water, which also tends to un.
productiyeness, and producing malarial and
other diseases among the Inhabitants
of the valley. 1t is substantially found
that much of the tailings come down
the streams filling up the rivers and producing
most of evils charged. Navigation has been
obstructed, much valuable land covered with
sand, and that the continuation of the prac.
tics will probably be productive Of still
| greater damage.
The finding may be considered for the de-
| PENDANT, however, upon the charge that the
debris adds materially to the malarial in
huences, or have DISTRACTED or will obstruct
| the sewers of Sacramento, or have injuriously
affected the sanitary condition of that city.
1t is found that mining pollutes the water OF
the rivers with mud, rendering them less
suitable for, domestic purposes. And that
| numerous other persons engaged in the same
| pursuit contribute debris to the same streams,
but for which contributions the rivers would
be able to maintain their channels without
serious obstruction, notwithstanding the de.
1 tritus from the mine of defendant.
The case is quite unusual in some respects,
and 1 have departed from the customary
| findings by adding general finding in which
| are stated some conclusions in mode less
formal, and some deductions from the evil
dence. hoping that the special findings will
be sufficient to sustain the Judgment, and that
| the general conclusions may aid the appellate
| Court in review of the case.
| The decision has been more or less delayed
| by other official work, and somewhat by fail!
ure to receive in time the promised briefs,
| and especially regret that counsel for the de-
Tense have not complied with my repeated re-
| quest that each party would suggest the points
upon which special findings were required.
There is no possible utility in an elaborate
argument on my part in support of the con-
illusions TO which l have arrived /; but, 10
fairness to counsel will briefly state some Of
the conclusions.
The defeases-which may be designated by
the terms statute of limitations, prescribe
| ton, dedication and way Of necessity-may
| be passed with the remark that obviously the
| plea indicated by each term or phrase cannot
be defense in this case. Indeed it appeared
4 to me on the argument neither was really re-
| lied upon, but were all used as convenient
means Of illustrating and enforcing more
plausible proposition, which may be briefly
stated as follows:
| The customs, usages and practice of min.
| ers, WI i:h have universally prevailed, aud
| which have everywhere been scquiesced in
throughout the State ever since it's organic,
/ ton, have sanctioned this use of the navigable
| streams, ar j in connection with the recog-
milton and approval Of the Government,
| both State and National, for o long series
of years. Everyone knowing the practice,
and no one objecting, has changed the
common law upon the subject-or at least
| the equitable circumstances exist which bind
the consciences of both Governments, and
which cannot be disregarded by them. The
| equitable circumstances alluded to ara mani
| fest, and could hardly be too strongly stated.
| So great calamity to 60 many people as
would result from q Judgment in this case,
were it to be precedent, has probably never
been produced by any case in this country.
Ard the acts which are said to be wrongful
have certainly been tolerated so long without
| objection. if they have not been encouraged,
that no shadow OF blame can possibly at
tach to those who have invested their money in
| it, IL the question ere in a legislative body,
whether some law which had permitted
| it. and under the sanction of which it had
| grown into Importance, should be repealed,
the suggestion would be irresistible. So it
would in an action perhaps where it involved
only the proprietary rights Of the Govern.
ment, or any interest of the Government
simply considered in its corporate capacity
Such were the facts in the cases cited for the
defense.
But there can be no estoppel which shall
| prevent the State from exercising its general
governmental powers in providing for good
| government; and certainly no equities can
| grow up in favor of one set of citizens as
against others by the fact that illegal acts
| have been long tolerated or that they are
convenient in the preservation of great in
dustry the Importance Of which has been re-
peatedly recognized. Here are many citi-
zens complaining that their rights are
being violated, their property and their
| health threatened, and their common highway
over nsvigable waters obstructed by the lille
gal acts of the defendant and others. To
constitute equitable circumstances which can
bind the Court in such case they would
need to be such as would legalize the acts
claimed to be wrongful. Has, then, the ma
| tional or State Governments licensed the de-
| PENDANT to make this use of the navigable
streams or in any way legalized the practice?
Has the common law in that respect been
modified. as claimed by the defendants! IL
| is of course not claimed that any action
the part of the Federal Government has
| changed the common law OF this State. That
| ia not within the authority of that Govern
ment So are the authorities and they were
not needed in so manifest q case. And it
would seem equally clear that the United
States has not licensed this use OF the rivers,
and that It cannot do so, nor can it dedicate
them to the use of the miners.
/ For the purposes Of this inquiry it may be
conceded that it has licensed the miners to
enter upon the public land. to prospect and
dig for gold; to appropriate the waters from
the non-navigable streams and conduct them
for lolg distances, dischsrging them again
| perhaps into streams from which they were
not taken-corrupted and surcharged with
mining debris. Washing the hills down into
canyons and the channels Of tae mountain
streams. To make every canyon or gulch a
common way for the tsilings of all. That It
has finally sold to them the mines with the
right to extrac. from them the gold, and with
the full knowledge OF the mode of working
them, and with full knowledge that the
| practice of miners in this respect was uni.
versal and under claim of right.
These propositions are not admitted on the
part of the plaintiff. but do any or all OF
them imply the consent of the Government
to the deposit of tailings in the navigable
rivers?
I. Obviously all these are the acts of land
owner. The Government has suffered this
occupation and use Of the public land They
! can imply nothing more, for the United
States has no further rights in the matter or
power over it. II was stated on the
argument that Congress may, and perhaps
has devoted these navigabie waters to this in
dustry under the power to regulate COM
merce. But evidently this cannot bs So
The reason given was that gold facilitates
commerce. The products Of most indus.
tries promote commerce. Nothing facilitates
lit more than good government and
security for. property. Under such a con-
struction the power to regulate. commerce
with foreign countries and among the States
would be the Aaron's rod to swallow all
others. The reserved powers of the States
would only be exercised by sufferancs. Min
ing is not branch Of commerce, and GER
tainly not of commerce with foreign nations
or among the States. But if Congress did
possess the power, the intention to permit
the Destruction Of nayigable waters. so exten.