Sacramento daily record-union., 1883-10-24
PERPKTUALLY EsJoIsRD.
Judge Ksyser Finally Closes Another Hy-


draulic Mine-Full Text of His Decision.
The fact was stated yesterday morning in
dispatch from Marysville that the injunction
against the Spring Valley Hydraulic Gold
Mining Company had been made perpetual
by decision and order of Judge Keyssr. Fol-
lowing is the decision in full
Moves vs. Spring Valley Hydraulic Gold Com
pany-The testimony in this clearly establishes
| think, these four facts
l. That the plaintiffs land was valuable for graz
ing and other useful purposes before it was injured
by the sediment and detritus now found upon it.
3 That large portion thereof is now covered
with such sediment and detritus and is rendered
thereby wholly useless for any purpose
8. That much of the greater part of this foreign
substance comes from the defendants mine and
mining operations and all OF 1t Is carried to point
whence it must necessarily be conveyed TO and de-
posted upon said land by means OF canal main.
tanned and operated by defendant, and none orSit
would come upon or said land but for said canal
l. That the area of plaintiff s land so covered up
is continually increasing and must continue 10 do so
so long said canal Is permitted TO convey and dis
charge its contents as it was intended to do, as it
was doing at the commencement of this suit, and
it will continue to do unless enJoined-
These facts constitute a continuing trespas5 and
nuisance which the plaintiff has legal and equit-
able right to have prevented aud abated unless the
defendant can show, on its part, right to commit
and maintain them. Has the defendant shown aay
such right? To do so it relies principally upon
three grounds, to wit Q) Delay in instisuting this
suit. ~ Aequiescence (3) Prescription. Without
discussing the nature of these defenses at length it
will suffice to that the doctrines OF delay, acqui
escence and prescription, when invoked in suits Of
this character are explai ed and declared by the
latest and highest authorities, as follows
o. Delay, as u defense in equity, stands upon the
footing as in Court Of law; and when the
plaintiffs right is primarily legal, as in this case,
and he seeks the aid Of equity to enforce it, mere
delay is no more OF a defense in Court of equity
than in one of law and, hence it cannot affect the
night Of action in the former unless barred by the
statute OF limitations. In this State an action for
respass upon real property must be brought within
three wears after the right Of action accrues, and
the plaintiff suit was commenced at the time the
uespass complained Of was being committed, the
plea Of the statute OF limitations scarcely be
successfully ihterpOsed-
l2) Acquiescence is where person having the
right TO object stands by II such manner really
TO induce the person who is about to commit, or
who is committing the Objectionable act, and who
might otherwise have abstained from it, to believe
tnaJ the former assents to the commission Of the act
In other words, acquescence is quie scence under
such circumstances that assent may be reasonably
inferred from it. Duke of Leeds case, Phil III.
De Bussche vs.. Alt, Law r, 5 Ch. Div. 286 The
evidence fails to show any such aCquiescence on the
part of the plaintiff, and besides, the doctrine
be invoked where in this case, the trespass
is continuing and the nuisance constantly increas
granted to some extent at least, the plaintiffs
property will soon be destroyed.
81 Prescriptions can never confer the right to
repeat a trespass or continue one that has been
committed. elias vs. Griffith. Law r. Ch Div.
52l) And the right claimed in this case by the de-
fendant to overflow the plaintiffs land and cover it
with sediment cannot be acquired 10y prescription
unless there has been uninterrupted actual occu-
patton by the flow Of water and deposit Of sediment
to the extent and with the same injury to the
same land for five years, with the knowledge of
the plaintiff and under claim of right the part OF
the defendant. (Grlsby vs. Clear Lake Water Com
pany, 40 Cal 1861 In this case no such right is
claimed, and the testimony shows that each sue
cessive year the water and sediment are spreading
over and covering up more and more of the plan
tfs land, and that If the defendant is permitted to
discharge the contents Of its canal in the future as
it has been doing and it claims the right still to
do, the remainder of the land of plaintiff Will soon
be covered up, and he will to have any bene-
fetal use Of any part of it.
am Of the opinion, therefore, that the tenn
porary injunction should be made perpetual.
hEYSER, Judge.