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

preSciE cOhnneu 10 the PUBIC lanCet ann IL was eA
pressly held that there was no law IN the State oil
California authorizing the invasion Of private prop
erty for the purpose of extract g gold therefrom
The case of Sims vs. Smith Il Cal, 14s,) also
relied upon by counsel, is directly in favor OF Inc
Plaintiff 1t holds that If the defendant built dam
across stream in such manner as to inJure the
CAIN Of the plaintiff, he responsible IN damage
for any injury oecasioned thereby
The case of Hill vs.. King Is Cal, $3.50, inyo,ved
only the question to the acquisition OF the ute 10
water by prior appropriation
TIE case OF the Yankee Jim Water COMPANY vs.;
Gary, p Cal, 50i, involved only the question ana
decided only the point thai the right oil prior ap
proprlat might be lost by the adverse possession
vi an ther :.
In The case of Stone vs. Bumpus, 46 CAL, 2ls. it
was admitted that the right TO construct the aim
in question was authorize by local CUSTOM anu tie
Govt said "Ths right being conceded, tie dam
age that might be oecasioned by such structure TO
subsequent locat T would be dGanunl dDSlue IN
juriG." The Court did not undertake TO determine
wha might be controlled by local mining CUSTOMS
nor did it undertake decide what was local MIN
ing custom.
Sow those are the California authorities upon
which counsel have relied as e tablshlng the Ia"
which the counsel ask your Honor not TO chAhge !;
but you viii notice, upon cJmparing lhe post'on
which the flantiff in this ca e takes with the posi-
ton which the defendant takes, that the one posi-
ton has reference to branch Of the law, WINE
the other position has reference to another. anu
your Honor will notice also without discussion OF
the question, that the two propositions-the one
made by counsel the other side and the one maze
by the counsel on the part OF the pialn.in-Inay
stand together; that there Is no inconsistency De-
tween the several propositions made by the Gttor
neys on the different sides. We stand here ready
10 admit, for the purpose OF this argument,
THAT DEFENDANT HAS ACQUIRED BY PRE-
sC2IFTION
The right to all the water in the American river
that it is the absolute owner OF the water In
the American river but, conceding that It has
acquired that title by prior appropriation and long
user, it d lot follow that it may take that wa
ter and charge it with noxious substlrces and drive
it through my parlor; conceding that the miners
are the owners OF this water. 1t does not io'low
that they may charge it wi eJris and rocks, and
send it down over my farm coaceding that they o
the owners of this alter, t de es not follow that
they may take it and with it drive down substances
" ieh nay result in the destruction OF navigab'e
streams.
do not understand that counsel even undertake
to argue in this that by prescription they can
acquire right to the waters or bed OF naviga Ia
stream. / do not understand that they even under
take TO argue in this case that by long user taey
may acqu re the beds of the stream the title to
hich it has not been the policy of the State to part
with and hence say that if they are the owners of
this property if they the title 10 the water, II
they have appropriated it in such manner as that
they NAV IL their own, we may stu quote the
maxim which has been the subject OF so much rdi-
Guile and discussion TIE other side, sic Utere tho
ut dLienum non laeddS. Use your water to which
you sly you have acquir the title by prescription
and by lcng user, IN such manner as not
to destroy the property OF the State or the
property Of riparian owners along the stream
Now und5rst nd that counsls position is, that
we must stand upon the ques ion as to whether or
not theirs is reasonable Use OF these streams. OF
course they have reference to the common law doc
trines governing riparian rights; they have refer
encs to the doctrine which authorizes every man
along a stream to insist, under the common law
rules, that the stream shall come down In lis unpo
luted condition. ard with all the water with which
it is charged by nature.
We are not hare to contest that question. We are
not here to argue against the decisions which they
have read. We agree with them as to the question
of prior appropriation We agree as to the title to
the water. We agree as to how much they may
take flom the streams; that they may. take
the water from the streams, and use it;
but they shall not permit it to be
charged with substances that are destructive to,
and which Will lie carried down over our property
destructive to rivers and to the homes of those
who reside along them.
There are come questions which counsel have
carefully avoided the discussion Of in this case.
First, the question as to the power of the Govern
ment to do this thing to dedcate this river to the
purposes claimed by defendant. Counsel the ether
side (bIr Wilson, in his argument, said that he did
not rely so much on prescription as he did upoa
dedication. Well dedication in this ease would be
the result of pres rption or of long user The de-
PENDANT assumes the power OF the Governments,
State and Nat onal, to dedicate the navigable
sreams to the uses OF mining, and assumes that
such dedication has been made by prescription.
The defendant must eventually come TO the ques
ton which say its attorneys have not discussed in
this case as to the power of the Sta-e and FEEDER
Governments to condemn private property for pri-
vate use, and to dedicate well th5 .,efse
streams of the State to purposes which must
eventuate in their ultimate, absolute destruction.
The assertion that the damage here CON-
planned OF by the owners OF private prop
erty Is damnitm Gbsque injuriG is simply
preposterous and absurd. Toe true doctrine
is that nothing can be daHnum absque
iniuTil which is contrary to law, and
that everything is contrary to law which contra
venes the maxim, sic teTe tue at dien non ldedds,
unless it is authorized by some legislative enact
ments having the effect to abrogate the maxim for
the particular case. In addition to this the maxim
ubi jus ibi TelHedium gives, in general terms, a
remedy for the enforcement Of every right. This
latter maxim has general application, and there
are but few exceptions 70 it, II Sc exceptions are
in cases where damag has been done in c5ntempla
ton OF law where the act resulting in the dam
age has been authorized be the Legis lture acting
within the scope Of is constitutional power. 1t may
be asserted, however, as general proposition. and
without any exception that no Act whether author
lied by legislation not which results in physi-
cal injury to private property in the obstruction
of navigable stream, can ever BE- brought within
the meaning OF the expression dGmnuDa dbsqtse
injttria. = To the
TESTIMONY
In this case shall make but little reference be-
cause in my Judgment the issues are too broad and
the too large to depend upon any small circum-
stance or circumstances, and the evidence Of the
important facts is too clear to require yi5 Of
the smaller circumstances detailed. The evidence
In this case is OF such nature that the general cir
cuustances attending the damage which has been
shown here must be OF controlling weight For in
stance il is a matter Of the smallest importance
whether a well was constructed above the city Of
Sacramento on somebody's farm and whether that
well is TO mote from the American
river and it is matter OF the slightest
import ince that some number OF witnesses in this
case have undertaken tn establish that in their
opinion there has been one hundred times more ma
terial brought down from natural wash than from
the deposits Of tailings by the hydraulic miners.
say the latter fact is utterly unmportant for the
reason that the opinions OF these witnesses, has
b, en- shown by the crossexamnatons throughout
the ent re trial, were based, not upon a knowledge
OF what had been put in by the hydraulic miners,
upon knowledge Of what had been put in by
natural WISH. They seem to have made nathemat-
ical calculation based upon imaginary premises,
and not upon knowledge of either of the quantities
that they were comparing. They made compar-
ison OF quantities and asked them, " Do you know
how much was put in from natural wash 2 Is No.
SIR" Scan y iu come within 100 times Of the
amount Can you tell whether it IS 100000 cubic
yards or 100, 00O, 900 cubic yardsr" No" " Can
you within million cubic yards Of the amount
that went in by natural washf" mo" Well,
how do you know, then ?" "well, just think So"
Aud their opinions worth just as much as the
unaided opinion Of any gentleman who resides in
the city Of Sacramento. They m de rough guesses (;
theirs were not the opinions OF expert witnes es,
based upon facts such as require expert testimony
the testimony Of men peculiarly versed In relation
the matter about which they testify. 1t is mat
ter OF the very slightest importance, too whetht
the Pc and the Ganges and the Nile have been filed
by natural wash whether a stream near the city of
San Francisco, running through mountains formed
OF sand from the carries immense amount Of
sand it through the mountain sides, and
whether the mountains upon which heavy rain
showers fall W Il be subjected TO a great deal or
very little erosion. These matters Of but slight
imp rtance when we come to the main facts Of this
ease, which in my judgment establish the allega-
tions of the plaintiff beyond reas nablo doubt.
Now must confess, that when went into the
trial OF this case did not expect that defendant
would come into this Court seeking 10 deny ers
maps elsewhere. | did not expect that defendant
would come into this Court and seek TO deny facts
that are "a well established in the history of ts
state ss any other fact IN history, unwritten or
written. | did not expect To find that witnesses
would come into this Court and undertake to con-
troyert the
ESTABLISHED LAWS or NATURE.
did not expect thst would hear any man contro
vert the law of gravitation and testify that
pended iron bah when turned loose would not fall 70
the ground. did not expect that there would be n
contr versy in this to the material facts upon
which this case must be decided. did not expect
that defendant would go % Europe and to history
to establish that streams carried natural wash.
thought It was better for us, who understand
some thing about our own State and who have
seen the operation OF streams here, to rely
upon them as our examples TO take the Sacra-
mento river-the one which is in part involved
In this case-te illustrate the propositions which
We are endeavodng to establish, II the Sac
u-atr