Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-03
DEBRIS.
IooNr1NuEp rRoM r1nsr rAcr.l

act. and men would not do it to-day. The
men like Hoagland, who lived opposite the
new mouth, had their lands swept away, as
ought to have been expected would happen.
| What became in those cases of the maxim,
sic utere tuo etc. These citizens of Sacra-
mento, who are full of their own woes. and
| breathe out the maxim as the Golden Rule,
have never contributed a single cent to reim-
| burse Hosgland and his neighbors, ruined
by the act of these same citizens. But
Hydraulic miners are polluting the
are deprived of their right to clear
water. Strange Inconsistency of this city of
Sacramento in the very complaint where
they make this charge. they set up that they
wish to discharge into the river they say we
pollu.e, the filth of their privies and sewers.
What are others goibs. 10 do who have right
to use the water below the city. If live
below it have a right to drink of the river
water uupolluted by the sewers of Sacra-
mento. Iprefer slickens for my drink, before
it is sweetened by the discharge of the sewers
said 10 rhyme of the city of Cologne and it's
noted smells:
The river Rhine, as is well known,
Doth wash the city Of Cologne;
But tell NE, nymphs, what pow'r divine
Shall henceforth wash the river Rhine?
MIR. Wilson here took up the report of the
B lard of Health, and pointed out that the
Folsom Prison sewerage is recorded as about
to pollute the American river, and that Sac
ramento must
LOOK 10 HERSELF
And her own safety, while begging leave to
herself pollute the waters CT the Sacramento
liver. The same report shows that irrigation
produce malarial diseases. Will the Attor-
ney. General file bill sgains the farmers of
tie Tulare and San Joaquin valleys because
their iris alton of the lands produce dire re-
suits upon the health Ct the people. All this
matter of health is entirely problematical as
to the result, If any, of the causes complained
cause, but the physician may speculate upon
possibilities and remote effects. But in the
face of all, they say the tables show
Sacramento to be one of the health
est cities of the State, comparing favor
ably with those points where the
atmosphere is purified by invigorating sea
trsezes. But though it ia not necessary to do
so, the case may be put upon the strict rule
of the common law as to riparian rights, for
then follows the reasonable use of water; and
where has the plaintiff shown the unreasen-
BILE use on the part of the defendant? The
right of the riparian owner is incident to his
ownership of land on the stream, but it is
liable to be abridged or modified by the exer-
else of the rights of other riparian owners
and the test of the exercise of the right is the
reasonable use of the water. Is there any
testimony here to show that this company
defendant has exercised its right in any I'M
reasonable way? There is no such charge in
the complaint, and defendant might well
have rested on that point and moved for nom
suit. There is no claim that defendant solely
Il 10, fol, I, o,,l -,
and there has been
NO TESTIMONY WHATEVER
To show what would have been the effect of
the work of the defendant alone. and unaided
by other works, and other causes of disturb
ance of the soil. Where, then, is the evidence
that the defendant has acted in an unreaso1-
able degree in the exercise of any of it's
rights? Defendant has shown that it has
mined. as have Others for many years, ard
that it has followed the well-estabiished Gus.
tom and usage OF the country. In a case
US W., 1872, where it was shown that the re-
fuse of tanneries was cast into river, &C.
cordirg to q general custom and the usage
for generations, and to prevent it would ut
te;ly suppress the tanning industry, Judge
Redield said such proof should have beensad-
mitted, and would have constituted a de-
tense. il there was no unreasonable use, ETC.
In 81 Richards Law Rps. S. c., 382 the
question of custom arose, and the Court
said it was question of fact and reason
and its reasonableness depends
on its long usage and the general
in it. In 80 Connecticut, in
o dispute between millers on a stream, it was
decided solely on tie custom of the country.
So. also, as to the general principles Cooley,
584), and as to reasonable use, and as to what
constitutes a legal wrong is question of fact.
- Al, Jafar1opt bau 40
use of the streams, or of any of
is rights, the Court must separate out from
all others the acts of the defendant alone
and see what is the exact thing done, and de.
t=rmine what would be the effect. If the de.
PENDANT is responsible because it contributes
to nuisance but does not produce it, let us
see where we will bring up. Many people
are doing thing that is a nuisance, but this
defendant contributes to it, the question of
degree being out of the case if it contributes,
il must CEASE it; so its Industry is to stop
THOUGH THE NUISANCE Is To CONTINUE,
No saae man can claim that the farms along
tne river do not contribute to the filing 81
5ha stream; it IS est sbliihed that they do,
and IS degree Of contribution is cut Of tie |
question, their owners. too, are responsible, |
and trey, too, must be epjoiucd and IA
strained. Open the door cnce, and there is |
where great community do q nuisance, any |
one contributing in tbs slightest degree to it |
is responsible for the whole. Take the |
binary riparian owner, who uses the wate. |
reasonably. Does il become unreasonable |
because others use it 1t TO an unreasonable |
degree that the combined result becomes in |
furious? Ia the Reyes case there WIS an |
effort to sue large humble; Of miners in one |
action and enjoin all. Il was interpreted that |
they acted Independently, were miles apsrt, |
aud that there was no concert of action, and |
there was rnisj inder. There is no princi- !
pal Of equity that will make one responsible |
for the wrong he has not done and not |
threatened TO DO, by simply joining him |
wi h Others VINO have done wrong. |
So, too, Pennsylvania State Reports and |
cases there cited. The result of reasonable |
use is distinctly recogniz I'd in many Califor- |
MIA cases. The lawful use of water, under |
the strict rule of riparian rights, will result |
in some pollution, some deterioration, some |
impairment of quantity, etc. Suppose such |
al owner using the stream reasonably, and |
one coraes above him and uses it reasonably, |
AID another. and another. and great num-
Der, and then what becomes of the first pro.
prietor? He cries out, "Once had plenty |
Of water, aud it was clear, aud deep, and !
broad, and ample; now it is muddy, shallow, |
polluted, and Insufficient" What must he |
a.? Why put up with the result of the |
reasonable uses. He must yield to
the equal right of those above him leases |
,ised). What is reasonable use must de- |
pend on the circu instances, width and depth |
Of the stream, the prior usage. the process of
advance in hydraulic science, |
etc. leases cited in supporf). The Courts
have recognized the right OF miners to use
the channel OF the stream TO carry their |