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

side, tlat Inc State mas tne
TITLE To THE STREAMS,
The bed of the streams and their waters. The Gov
eminent q the I'm ted States acquired an iu-
terest either in the lands rivers Of the State
cept where those lands and rivers have been ceded
by the State TO the Feds Government And we
shall undertake to maintain, and to establish it by
authority too, that the State itself, original
common law proposition, ii the Law had been main
tanned as il in England, did not possess the
power to grant the nagable streams and the waters
of those streams, for the Crown originally held those
streams in trust foi its subjects.
In IL House of Lords Reports your Honor viii ind
a statement of the rule in England upon this subject.
But | desire TO call your Honors attention to the
fact before proceed further in this argument, that
it is my intention to argue this case purely from
public standpoint. And | assure counsel on the
other side that neither party to this case VIII hnd
representative in me- except SO far as the main
tenance of the public right may make me counsel Tor
the one side or the other.
In the case of Gam VS.. the Three Fishers Q1
House of Lords 20 the English rule is stated. The
Lord Chancellor, speaking on this subject, says in
that case The bed of all nayigable rivers where
the tide flows and refows and Of all estuariss or
arms of the sea- is by law vested in the Crown. But
this ownership of the Crown is for the benefit OF the
subject and cannot be used in any manner SO as to
derogate FROM interfere with, the right OF navi-
CATION, which belongs by law to the subjects OF the
realm. The right to anchor is necessary part oil
the RICH. Of navigation, because it is essential Tor
the full enjoyment Of that right Ii the Grown,
therefore, grants part OF the bed soil OF an estuary
or navgabe river, the grantee takes subject to the
public right, and he cannot in respect OF his owner
ship OF the soil, make any claim or demand, even IL
it be expressly grated to him. whith in any way in
terferes with the enjoyment OF the public right
81 that it was the right OF the subjects heid IN
trust by the Crown, and not the subject OF controi
BIZ the Government. In our own law 1 Will cite
your Honor to few authorities on that subject,
because think they establish the position of the
People in this case beyond question, In Wood on
Nuisances | find this doctrine laid down on pages
62S and $780, which to my mind seems to be con-
elusive of this matter Z" In this country each State
has exclusive jurisdiction and control over Its in.
land streams that are not avenues OF commercial
intercourse with other States, and may deal with
them it pleases 1t may authorize the erection OF
wharves piers, docks dams thereon, or the cree
ton Of bridges them, even divert the water
thereof aud entirely destroy their navgability and
upon such streams whatever is done by individuals,
str ely within the scope OF the power given is law
full and cannot be regarded either as pubic or pr.
vate nuisance But if the powers OF the Act are ex-
ceeded, exercised in manner different from
that provided in the grant of authority, or ii the
act can be done 80 as not to be nuisance, and the
creation Of nuisance by the exercise Of the power
given Is not fairly the result OF the exercise OF the
power conferred the grant will be protection, and
the party doing the act will be chargeable fer nui
sance either by indictment at the suit OF persons
injured thereby, the same though there had been
no color of authority given for their exercise"
Your Honor will find the case of Bailey Railroad
Il
at bar. There it held that State has the right
OF a proprietor over navigatle streams entirely
within its border and may obstruct or unless where
restricted by the Constitution OF the United States)
may close up such streams at pleasure This doc
trine is maintained by al the authorities; the State
has proprietary interest in its streams that it
becomes matter OF words, matter of discussion
and oil nice distinction, to whether not the
Attorney General is confined to protecting the pro-
prietaty interests OF the State In the case just
cited the Court, at page 39j, said 1.-THE State re-
tains the right of eminent domain to even private
property, or property granted by it to individuals
which is the ultimate right Of the sovereign powsr
to resume the grant for public purposes, on pay
ment OF just compensation. But nayigable streams
have never been granted to iudivi uals; and the
State resumes nothing, and of course violates no
ones right of property when, for great public pur-
poses, it uses the waters Of such rivers even to
impede or deprive individuals of their accustomed
use OF them. 1T true that in relation to great
rivers which afford essential means Of commerce
with other states and the world certain restrictions
are imposed the States themselves by the Cousti-
tuition of the United States but Of such river as
this it may he assumed, at least since the case Of Will
vs. the Blackoird Creek Marsh Company e Pet
Rep, 25 tn Il the State mas the unrestricted right
of pro. retor over its waters and may obstruct
close the same il the public interest or convenience
requires 1t to do so.'
| undertake to say If your Honor please, that in
the absence OF the constitutional provision which
undertakes TO grant Congress the right TO control
and to regulate commerce, to the States alone
would belong the rivers and the control OF their
navigation that the Congress Of the United States,
independently of any concessions made BY the State
ITSELF is therefore limited In anything may under
take to do, to the regulation OF commerce; but it
has no power to destroy the navigable rivers OF u
State. There are many authorities upon this ques-
ton. We say that originally, and a proposition
uncontrolled by the Federal Constitution, the State
OF California would possess proprietary, complete
and unlimited power in the control Of the rivers
within Its boundaries But 1t ia asserted on the
tI..ra 11fa
to destroy the navigable streams And they under
take to make their perscrptive right depend upon
by allowance Of the State and Federal Govern.
ments upon
DEDICATION
By acquiescence of the State and .be Federal Gov.
ernmens. The question to whether the Federal
Government has aequesced in the use Of the waters
belonging TO the State, in the absence Of The power
OF Congress to grant the asserte rescr tive right
utterly mmaterial to this case. 1t is rule which
counsel himself must admit, upon which it is unne
eessary for ME to cite authorities to Honor that
prescription presumes grant, and that prescrp-
ton cannot be made available excepting in those
matters which ere the subject of grant. That a
prescnp.ive tight to aintain nuisance cannot be
said to exist. That preScrptise right to take pr-
vate property for private use, being inhibited by
the Constitution, cannot be said to exist When
they seek to raise the presumption of their grant,
it will at be said by your Honor hat the grant
cannot be presumed because the right claimed is
not the subject Of grant. And say that in this
case they might as Well assert prescriptlve right
to legslate Tor California; they might well assert
pre.criptiye right to make constitution neither
of which the powers Of Government can grant.
Hence, say, when we coacede, as we must concede
in this th1t the original right to the beds
is in the State that when the defendant asserts a
proscrptive ri ut against the Federal Government
to the streams OF the State we have q right to
turn to it and ask it by what authority the Federal
Government claims the right to grant to it, either
by nacton or by active legislation this right which
it ASSERTS by virtue OF the acquesence Of the Gov
eminent We have right to ask it where did the
Government of the United States get its power :?
From whom has it acquired the right to &C
quiesce in the destruction Of our navigable
streams?
Why, counsel on the other side said to your Honor
that if the Attorney General of the United States
had brought this action to prevent the destruction
OF the nav able Streams he would have been laughed
out of the Court. But the reason why he would
have been laughed out OF Court is because the Gov
erDment OF the United States has right to those
st unless there is some legislative :tmeat,
or some compact between the State and the ed
cra Government which authorizes the Government
OF the United States to assert, in the language of
counsel, proprietary interest in the Streams. The
only right which the United States may calm in
this instance exists by virtue Of the provision in
the Constitution OF the United States authorizing
Congress TO
REGULATE COMMERCE.
Suppose that Congress, in order to regulate COM
u
Sacramento river just at the south of this
city, extending from the high lands Sutterville
back to tie h'gl lands Of the Coast Range noun.
tsinsf Congress, under the guise of regulating
commerce, would dam nayigable stream and de-
stroy city. Now il Congress may determine what
it is that in any instance is regulation OF com
merce if Congress is all powerful in tiers OF this
kind, who would say whether Congress was regu-
lating commerce in the construction Of such a
work? II would become matter of legislative dis
cretion According to decisions that have been reI-
dered by the learned attorney himself take it that
where discretion is committed to the Legislature,
that discretion, except in extreme cases, is never
subject TO judicial control.
Now, suppose that instead OF that, Congress
should say, In order to regulate commerce. it is
our opinion that it is necessary that should COL
lect the rocks Of the mountains and fill the Sacra-
mento river from the city Of Sacramento to its en-
trance into the bay" would anybody say that that
regulation OF commercsf Would anybody say
that Congress, under any circumstances III der the
guse Of regulating commerce and the control which
it res elves under the grant 10 the Federal Consttu-
might say ever since the time when civilized COM
munities have been banded together, devoted ever
since there has been government, to the naviga-
ton and to the ordinary means Of navigation, by
which commerce is carried on, would have the right
to destroy the streams upon which commerce has
always be n cirriedf Would anybody say that the
Government Of the United States the Government
CT any country, under the mere guise of limited
power only Of regulating commerce, could do that
IL it may destroy the streams, why it not
destroy the harbors and the bays in its regulation Of
commerce.
Why the power OF Congress is limited to the reg
ulatiop OF commerce. it does not extend to its de-
struction. 1t is limited by the provisions to the
keeping open OF the avenues OF commerce. 1t is
limited dining nj those thinera which promOte