Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-04-01

the law officer to 90 some particular thing which i
was then his unqueslione6 duty TO 10.
There can be no such thing SO
PREsCRIPTIvE
Right here The Congress Of the United States can
not grant this right, because Il has agreed not to do
so. The State canuet grant this right, because il
has surrendered its power Congress never did have
the power. The State did have the power, but
under It's Act OF admission e spGsted that it would
not obstruct the streams Now the State could not
repeal that Act Of admission, and the practical
effect Of the counses argument in this is that
by nacton, by refusing % comply with its compact
D. refusing 10 comply Win Tho Act under which it
receives ali lis powers state l. has given to its
citizens pres nptlvo Tigkl 20 that which IT could
not directly grant.
Blackstone in his Commentaries (Kerr's cd. D
222l says; " prescription eNnuet be for thing
which cannot be raised by graft Fer the law allows
prescription only to supply She loss Of grant and
therefore every prescription prssupp Jses grant to
have existed. Thus the loTyl o. manor cannot pre-
SC ibe to raise tax ton 7IPoa strangers for.
such claim could never have been good by any
grant, it shall not be good ~ prescription
This principle is applicable 70 this Sase. The pow
ers OF both Governments combined, under the Act
admitting the State into the Uu;on, we're not SUI
acent TO authorize this alleged preserptiye grant
The same may be said OF customs A
CUSTOM
Is the result Of an exercise OF legislative power I
believe that all Legislative povSr was originally in
the people. And The power q legJistion limited
by the state Constitution Is much limited when
the asserted law is the result CT active legislation as
it is when it is the result ef inasion Of permission
and of acquiescence. Custom is z law. a law can
not e5ntruveno the Constitution, custom must
be legal, and l care not what may have been the
customs of Mexico, bes1use whStever those Gus
toms msy have been, we adopted 4 code Of laws Of
our own. We made Constitution Of cur own and
We have established government OF our own which
must stand upon that Constitution.
Now without undertaking TO GiscUss the question
Tn he If fra ifaroI
owners along the stresms, Il Is sufficient to say that
the evidence in this establishes that the effect Of
this debris has been to destroy every orchard from
the town OF FreemQnt down 10 Steamboat slough.
The orchards along shat stream we're nume rous The
farms Of the very best quality Of land, located
as they were upon the high banks, the ridge
through which the Sacramento river runs. The evil
dence shows that thousands Of acres OF land on the
east and west Of the American nave been destroyed
that the bottom OF this river being filed and the bed
raised the capacity Of the river TO carry its water by
thepopuous city of Saoramentoan the several towns
bordering upon the Sacramento, has been so far d.
minshed that along the banks OF that stream where
for many years farmers in security enjoyed their
homes without the protection Of leyees or embank.
ments, it has become 8,ecs AIRY that systems of
levees, constructed according 10 the theories OF
learned experts and engineers, should be erected
with view to protecting these homes, where secur-
ity formerly dwelt, against the annual nuEdations
that come.
The statute OF this State, Ia dshainy what eonsti
tutes public NUS mce, provides that anythingis
public nuisance which injuries the pro- erty Of . con-
siderable number u people The evidence estab-
llshes in this case hat this nuisance of which We
complain operate upon tie proIsrb Of more than
TWENTY FIVE TRoUsAEp PEOPLE.
Your Honor may take insl Oo0gt Grafton, as
fact of which you havs judicial notice, that
this is the Capital Of sLe STATE inhabited by
many thousands Of people. In addition to
that, according to the testimony, tie con-
slant encroachments m5de 10y The water as Il;
rises, as the result OF the filing OF this river,
threatens eventually to cover .Em entire valley IN
tural OF artf ;ial means. And hence discuss this
question IS q question which, from lis nature and
the nature of the injury Eiat hao been inflicted,
becomes by the pronounced VS. u this State, made
by the wisdom of the Leg i5lat-re public nuisance,
and hence public wroEe. In ore sense 1t may
be So that robbery injuries directly only he indi-
vidual from whom the property Il taken. But IN
fiction OF law the public peace has been broken, and
the party doing il has been violating public right.
So it Is in this no less because o. the vastRu
her Of people whose pruPesty il now threatened
with eventual destruction. 1t no less public
nuisance than il would have been had 1t been but
single individual whose property rights had been
violated in manner pronounced criminal by the
criminal law. And In the iaJlsu sc OF counsel had
il been n Of robbery, l suPpcse be might have
asked who would be tho Ass9rEey General for the
de;enant?
l say then, that this wrong, 10 the respect men
toned becomes public naissree- Now, whether
or not that nuisance comes from the mining regions
Is matter which shall ava to the close OF this
case But, admitting for tie purposes OF this argu-
men at present that this Is She result OF the dis
charging Of debris into the streams public or prt-
vate if you please; admitting, for the purposes OF
that the miners put 1t there. undertake
to assert that it is beyond tbs legislative, judicial
aud executive power OF this Government to author
ize that thing 10 be done No such authority can
be ola med by counsel on the ether side, except
upon the ground stated by eouE gel who first ad-
dressed this Court on behalf OF the defendant that
this is
DAMNUM ABsoUE INJgRIA.
Aud in arguing this proposition he undertakes TO
EAST ref coSs upon ancient and weil-undersioOd
maxim Of the law. wrote rs he went along " De-
'endant's counsel undert ke5 by argument to show
that the m kim, $40 utsTe tlo H diierrltin non
aedds is utterly useless and meaningless, by read
ug from an opinion in Which the learned Judge-i
10 not know his nGne-diA more crejit to his
rhe torie than he did to hH leg n scumen His rea-
,oning as l understood it. was, that if the damage
complained of ddmHRni ebsGcs fnjUrid, if it
vas injury not the subjost OF legal recognition,
And. therefore, in contemplation OF law, no injury
1t all, the max m would n0s apply. Well, that is
IL ev. dent. And will undertake 20 say that the
RI ason that it would Bet sppS is because those
two things canncs exist together. DdmHum
absque irju"tG and Sic ,itsrs I've .t dlielt'n non
lasdas two maxins that ssuAot ne applicable to
the same IT, on the contrary damage In law
had been done, the maxim was unnecessary, evil
IDENTITY forgetting that the question whether the
was dos cGnlzADie Dy ING
Court was determined largely BY the maxim
which the learned Judge pronounced as
being of practical utility. It might as well be
said by counsel that definition Of robbery is OF no
utility. Why? Because il the defendant did not
commit robbery the definition did not apply;
il he did, it was not necessary Sis utere tho at
altenuns non lGedas is a ma kim which goes not to
the remedy-and counsel should have remembered
that before reading such aatherity-but it is u
maxim which goes to the rig hit itself. And where
man violates that maxim the damages cannot be
damnun, abslue injtria Dt7aaRns oosqtte inJurfd
applies only to those injuries which are author
lied by law and by competent authority. And /
counsel b. find solitary instance where
this expression is held applicable 10 the damages IN
less they result fr I'm an set which the law does not
denounee as Illegal.
lGetias-so use your own as not to injure that OF
another-is maxim the yio alton Of which is a vio-
lation OF law is q maxim which commands the
right to be done and prohibits the deing of the
wrong. Aud when tho right is DONE Of course the
maxim does not apply, eXcsps to cay: You did so
use your own as not to iuture That OF another.
But to take the found ton upon which 10 de-
termine the question to whether legal right had
nounees 1t being Illegal and say it does not apply
because it is Of good IL it Is Illegal to
like reasoning in crcls. ] can remember few
cases where this maxim wsuid not apply. Judge
Wallace, who presided the Supreme Court Of
this State at one time-perhaps have no right to
crticse the decision, bsS never thought it was
rignt ana certainly IL was nOB tuSt-held tnat Inc
strais htening OF the Sacramento river and
the damage resulting from thAt GaaTuiR
Ibsqae irjuia. Why1 Because, the Court
sad, the Legislature, acsng within the
limits of its legislative power, had determined 1t
should be lawful for ceTLiu otigers to do the act
resulting IN the damage, and therefore they were
not responsible. Bus had that Court determined
That the Act of the Legislature which authorized the
Of the unjust ass was in ecntravention
of the Constitution and in excess Of the power Of
Inc Legislature, the result would have been that it
would have held the perpetrators responsible, say
ny SIC uteTe tho ut Gl6e7tss1B SIN idedas the re-
suit would have been b & il would have held that
mat was not dananttns absYas injssta 1t would
nave held that the LeslAu e, exceeding its consti-
utionsl power, had sought to take the property OF
IN individual under the guiss Of exercise of the
Dolice powers. have aiwaIs, your Honor, largely
frank Of that doctrine laid dGSn by some eminent
Judges OF this country, who say that where the pub
ic right demands the destruction of individual prop
,rty the public are capable 81 paying for it, and that
when they undertake to say, under the guise Of the
-egulaion OF the police, that the public may take
property, may destroy property without compensa-
on they violating the very letter C the Consti
ution which says that priya,e property shall not be
AIKEN for public use exeep, upon making com
,sasation.
| do not care to discuss The ease of Green vs..
swift, but do submit, yosr Honor, that this talk
bout the exercise of the ps'iee power is without
warrant Where in the Constitution is there
my authority for it, notwit list apdiDg the de-
.sions favorng itf Where il, the Constitution,
where in the nature OF our Government where in
Justice. is there to be found warrant fer willful
of individual private property for the
,eneft OF the public, without compromising for it 7
remember that in some Of the authorities they
nave laid down the dOetri e here eontended for