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


construed that 10 have been done.
The title of he case IS i ston Boston. Concord
and Montreal r siirosd Company, u km. Rer. LOG
Aud may add here, bcfor taking up that decision,
before reading the authority, that, of course, if
the flooding OF mans lSud is a thing which
Is century, TO Law and
TAXING, WITHIN TIE MEANING CT THE CON-
sTITugIoN.
The flooding Of msn's land, and adding 70 the
food rocks and stones and debris of every kind,
which results il physical occupation Of the land,
is also taking Of i. EHd certainly where 1t re
suits, and necessarily must result, in the utter de-
struction of the mars lsud, then it is taking.
Nov, the Court, speaking Of the simple flooding,
says: 1.-THE defendants are not held LIABLE as in
come other cases, bec U5e their SETS We unneces-
sarY, or unskilful and hence not within the con-
temptation Of the charter. They are held liable,
irrespective a any negligence on their part on the
ground that it was beyond the power Of the Legis-
lature authorize tag infection Of the injury the
plaintiff, without making provision for his
Compensation We think chat here has been a TAX.
ing Of plaintiffs property; that, the statutes
under which the defendants acted make no pro.
vision for the plaintiffs compensation, they afford
justification that the defendants are liable this
action as wrong-d0ers; snd that the ruling OF the
Court was correct La some instances,
soon as it has been made to appear that there is
Legislative enactment pu-porting to authorize the
dong OF the act complained OF, the complaint mas
been a. once summary disposed OF by the curt
statement that Aos authorized by law caapo5 be
tort This is be ,.ing the question. 1t assumes
ment is opposed 10 the Constitution 1t is IN TACT
no law at ALL The I'M unconstitutional taio In
American jurisprudence is Hiisnomer and implesa
contradiction -
Then the Court goes on and discusses this ques
ton at length, snd holds eventually tat this act
which was charged against the defendant was
taking within the meaning OF the constitution al IN
hibition And there, too, want to call your Hon.
ors attention the fact that there was no provIslo
in the Constitution of inst State prohibiting the
taking of property without just compensation The
Courts have gone beneath the Constitutions to hnd
this The Courts have sought IN the elementary,
fundamental idea CT government TO ma TINS IL Is
universal everlasting doctrine, which must exist
in all popular Governments, the subversion of
which or the repeal Of which would result in rebe
ion, and in breaking up Of the Government itself
"a doctrine the beneficial results OF winch are so
great in preventing corrupt legislators from under
taking the transfer Of property and the destruction
Of property rights a doctrine which is so benefcent
in its provisions that Courts have locked beyond
Constitutions to whether or not they could not
find something that operal5d SO just proper and
equitable limit upon the exercise OF the legislative
In this case q. 17I} speaking Of this subject, the
Court says
There are caees Hhera an action against corpo-
ration must fail, not because the defendants are
chartered body, but Because the act complained OF
would not have beea sc,ilgabe il done by private
Individual without legislative authority; the damage
being remote or being caused by reasonable use
by another OF his own property tDdnnUH a5SYue
and call your Uouor's attention to the fact that
ddliHUm abs4us s,yssySI, unintentonsly, pre-
sumo, Mr. Wilson, IN each individual case, stopped
when he came 10 the application OF the principle,
simply citing that where q thing was ddmnUm
qbsgus Hjtt Ia, the injured party could not main
tain an action-a trUism which all lawyers admit.
SAYS the Court in the clse from winch have just
read, in illustrating the doctrine ddmnum abSque
iajtirtG: " IL my neiehbor set up rival store or
public house, he injuries ne, but l cannot sue him.
So ii the public open new road, and thereby draw
away custom from my hotel, or my stage line, have
no remedy unless one is givea by statute. The re-
m0val of county OF State capital will often
reduce very largely the value of all the prop
erty Of the place from whence it moved; but
in neither case can she party injured claim compen
sation from the public"
These are excallens Illustrations OF the general
doctrine under consideration.
Then the Court goea 81 and lays down the doe
triGe which believe t. be the correct doctrine.
AND that is this II determining whether not
the party's property has been taken by egis-
latiYe enactment, yen 70 determine whether or
not the law is taking from him a cause Of action;
that g. whether 4 atute Is passed by which,
for q thing which ordinarily would give him q right
OF action, he is denied that right OF action. And
whenever he is Jen.sj right Of action, or when
there has been physical int rference with the
right to the user OF property, with the comfortable
euj0yments of property, with the OF property
for the purposes fsr which it is most valuable in
all cases in which that has occurred, the DANA ,es
are not dGafsuBt GaSgns uyttriG. Upon this ques-
ton probably one Of the abest decisions ever rem
derei in the United States vas in the case Of eX
p1rts Martin, English (frk.), 199
That was case involving public qlestion-a
question public in every respect The Government
OF the United States had granted to the State
tain OF its swamp and oveTh1wed lands within its
boundaries, upon the cendii n that the State would
reclaim. Congress then had expressed its will that
this property should be reclaimed. The State
Cepted the grant ana provided by law sy TEN by
which it proposed 20 reclaim the lands. That sys
tenn was that an immense work of reclamation
should be constructed around the lands, and that
any individual desiring to purchase the lands from
the State acquire tide TO lands belonging to the
State under the roviOns Of this Act could, by the
reclamation OF a certain NUMBER OF acres oil the
lands that were swamp, graz It'd by the GoYernm mt,
acquire a certain proportion of it for himself. In
pursuance Of this system Il reclamation, they had
what they called Reclamation Commissioners. These
Reclamation Commissioners themselves, in addition
TO this, proceeded TO erect vast works Of reclama-
ton. II acceptance Of the swamp lands by
the State frem the Federal Government, in the
spirit in which the grant made, and the
object smpy to further the general pur-
pose of the Government in the protection Of
these vast interests, and the creation by that
of a vast amount OF revenue TO the State and the
making OF homes and adding large area to the
habtable territory Of the State. man residing
by the side Of one OF these reclamation works had
little meadow Of a few 3, along which stream
had formerly been in the habit Of flowing, and flow
ing without injury to his property. He brought an
injunction suit, Hnd in that suit many questions
arose first the power Of the Lesis atuTe-that
being the main question-to pass law by which
mans property should be materially injured or de-
stroyed though it might be for the purpose Of
maintaining st Interests Of the Government. On
the side Of the defendant acting in favor of the
law they contended that it great public work
that it was an exercise # the police power that it
was creating homes for great rumber Of people
that il was creating vast industries that it
ferring great public benefit that it in pursu
ance Of a sett ell policy Il the Federal Government;
that it was the acceptance of grant upon express
condition that this thing should be done that the
State, acting in good faith in this respect, had un
dertaken to do whist Congress required it to do.
But the Judge, in opinion which is unanswer-
able in its reason said that the l. gisature and Con
yres5 combined, in this Government Of limited
powers in this Gever ment were the Legislature 10
not all powerful could authorize no act which would
be an injury to the lowly home of the farmer resd
ing by the side Of these vast Government works.
That was but injury BY water And had the
defendant in that case been defended BY counsel
who have so ably and learnedly defended this case.
imagine l could have heard them say that 1t WAS
dGmyltm dbsTto sRjuriA
Your Honor has doubtless observed that in the
discussion OF the merits Of the case, have thus far
endeavored to coniRe myself to effort to sustain
five propositions, viz: That in the absence OF the
Act Of aimssion the State, being the owner Of all
nayigable streams within her borders, would have
the absolute and ezsusve right to say how far they
might be injured or their navigabilitY impaired
cept in far that right msy be said TO be quail
fed by the power possessed by Congress TO regulate
commerce between the several States, under the
provisions Of the Federal Constitution that by the
Act OF admission the State has waived and surren
iered its right to impair the nayigability Of its
streams aud to tn { extent, by It's voluntary
act has limited its otherwise almost absolute CON
troll over those streams; that the Federal Govern
ment has never possessed the power to obstruct
nayg alton in the Of the STATE the extent Of
It's power under the grant Contained in the Consti-
tuition being limited II the regulation Of
commerce; but that if it ever possessed
such power, it has by its own act the
Act OF admisai0n--which has always been the law
of the Government pied sed itself to keep those
rivers forever open common highways; that as a
result it is not only beyond the power OF the State
and Of the United ,tate5, her by nscon active
legislation 70 authorse any material obstruction b
navyabe streams, but It is the legal duty of both
Governments to comply With the compact thus sol.
emily entered into BY them, by preventing any
material impairment q those streams, by whom
soever undertaken. That
LARGE LANDED AND OTHER PROPERTY
Along the banks u the stream, according to the
evidence in this ease, Will be subjected to destruc-
ton and that the State aud Federal Governments,
without formal condemnation. preceded by just
compensation, are PoTeriess, either individually
taken together, 10 authorize injuries Of nature
which, according 10 the authouties amount to
taking pro taE.to, within the meaning of the Con-
sttution.
on the other hand, they insist that are de-
,,ending upon the existence In this State Of the
strict common-law rules in relation to riparian
rights and In order 10 sustain their position several
Authorities have been read, which counsel on the
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