Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-04

current be successfully resisted by the ms
terial cast into the river? The works of th
hand OF man, built to resist, have for age
given away, and none have to resist create
torrents than those of tho American river
NO. The materials do more they do g
| on, grinding their way with the same de
gree OF certainty with which we RELY on tn
return of sunrise. Why the water upoI
rock, rock upon rock, bowlder upon bowlder
and all upon bedrock, wears away the rocl
snd stone and rounds them off and reduces
them In size and grinds to sand, and tht
sense OF sight proves it beyond question.
SEEING THINGS DIFFERENTLY.
| These engineers see things differently.
| When these scientific men become mining ex.
perts they see things through prejudice and
| interest. Professor Price is learned man,
and his testimony valuable as such, but he
has become a mining expert, and we know
now, if We did not before, that these en-
gineers and chemists, when they come to be
| mining experts and have mining interests,
see things very differently from those differ.
| emily situated. Who that has seen a noun.
tain stream but knows that mica is moved
| by it p? Who but has seen it elistenirg and
| moving in the current: If it be true that
mica is found in the river sands here, and
none in the Gold Run mine, is it conclusive
that the sand didn't come from the mine
Certainly not, for there is enough of mica
sufficient moving in the streams,
to almost make this mining
sand micacous. No one pretends to say all
this sand came from the Gold Run mine, or
all OF it is in its original condition, or that
none of it came from above or below the
| mine. But can any man by examination
pretend to say that given lot of sand did or
did not come from the mine, when il it is
found granite and feldspar. etc, and when we
find near to each other all kinds of sand,
brought down by the same stream? Pro-
fessor Price with all his knowledge is not the
superior of Professor Lardner His state
ments are tinctured with the zeal of the
mining expert.
Afternoon Session.
Judge Rhodes resuming, reviewed the facts
illustrating the irresistible force of tie Amer
icau river at high water, and the proofs
that the mining material does pass
down the stream. and compared the Los
Gatos and Alameda creeks, with less
grade by far than the American, showing
how the former streams nevertheless carry
gravel; also the proven fact of great bowl
ders moved by the current of Putah creek.
Il is not denied that other miners did, and
now do, throw debris into the river, but that
is no defense for defendant. If they threw
in enough to half fill the Sacramento, it can
not excuse defendant for adding still more to
raise waters still higher and cause still
other matter to come down. He reviewed the
facts to chow that even the lodgment, as
claimed by defendant, of matter from its
mine, if it does take place, changes the
character Of the stream by diversion, thus
causing stronger current and greater
erosion and consequent injury, ahd the re.
spoDsibiiity therefore rests upon defendant
just as if the heavy matter did come down
admitting only for arguments sake that it
does not come down. Defendant claims that
slickens add to the value of the land and fer
tilize it. Why should it do so, if, as they
claim, it does not come down! They prove
that in other places slickens has come on
land. and that farmers have begged tor it to
bs turned on their lands, yet they hold that
matter from their mins will not make slick
ems. But if it is admitted that it is fertili-
zer, is that reason they should put it
INTO OUR RIVER.
Sugar is good, but not all of us want il in
our tea. Ii we do not want our lands fertil-
lied by their slickens, they cannot force us,
IS right, to take their deposit on our lands
Concede that the mines have wrought
injury that were miRed prior to defend
ast's work. Still that does not excuse
defendant from doing further injury,
or adding to what has been done.
It is no excuse that some cne has made it
easier for them to do wrong. Some of the
positions taken by Mr.. Wilson had surprised
the speaker, as he had not thought any one
would be so bold as to advance or rely upon
them. AS to prescription, when did it begin
70 ham T ho rirrhE s I,,x
scription when it becomes complete, then
the Court viii say l have grant from the
original owner. But can't prescribe against
a trespasser, or against ore not the owner.
The State did not own the land or
the water. So there was no prescription
against the State. Who ever heard OF
a prescription against the United States or
the public lands in such case as this? Own
q quarter section and cross for fifty years the
Government land to get to and from it, ami
yet we could never claim prescriptive right
as against the Government. The State
couldn't lose title by defendants claim of
prescription. The Civil Code, Section 3490,
puts the matter to rest, unless the prescrip-
tion matured long prior to 1873. 1t is absurd
to rely on prescription, unless there is some
right claimed that is to be exercised In re-
spect to nuisance continuing in its nature
THE STATUTE OF LIMITATION
Does not run. But defendant says the State
has granted it license to mine on the public
land and to mine as it does. If so it would
be q valid grant against the land. Now, pub
lie land was open to occupancy, and mineral
land to being entered upon to be opened
up in mining. One 80 entering coull
defend against newcomer not under title of
the United Ststea but it was not license.
But 1t is said the license is dedacible from the
Ia nf the mi apt nm txy THAR
Recognition of rules as to mining on public
lands (for the Supreme Court says they don't
apply to private lsnds) was not license to
entsr or do anything; but the law said, hav-
ing entered, these rules shall govern yeu
These rules related only to the acquisition of
the miners title and his tenure, l. e., how he
could gain constructive possession, and what
must be done to retain it; as to amount Of
work, kind of notice TO be posted, etc., so
that the miner might hold against the next
conner. This definition covers generally all
there ever was in miners law. But they claim
these regulations had the forcs' and effect of
law, and were recognized as such, and that
among these laws was one fixing the mode as
TO how the mines should be worked. The
node of working mine was never fixed by
miners law, and never was custom. But
is practice custom that has the force and
effect of law? Certainly not It used to be
the practlce OF SnS miners TO go on any pub
lie land and cut fuel or timber for the mine
they all did it. Is any one prepared to fol-
low that up and say that practice crystallizsd
into custom that has had the force and
effect Of law, by reason of recognition of the
practice, and therefore any miner has the right
as against the United States to go and take
timber from the public land? Again. it was
the practice to take up the best stream to
get water for the mine. Will any one con-
tend that the Act of Congress has given to
that custom by recognition the sanction that
makes it law? Counsel here read from the
Act of Congress-, 1866, to show that the
State might provide rules as to drainage and
easements, acquisition of water rights, etc,
for the purpose of working mines. If the
common law was sufficient, why legislate on
it? The Supreme Court has said that any
adherence to custom among miners as to
marking the lines Of locations, that were not
in strict accordance with the statute uS66)
would be Of NO effect whatever. The Act
said the miners might make rules and regu.
lations relative to boundary lines, and the
work to be done necessary to holding, and
there they ended.
THE METHOD OF WORKING
Never rose to the dignity of rule. 1t varied
in every settlement and never became a Gus
tom. The old mining lawyers and the early
Judges never thought even of making such
i ~ L. l.