Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-03-06
a MIaIKG CASE.
a Decision in Hydraulic Minirg Case in
sacramento County.

1CsNCAIAys tdC AGESAA1A NPAAtt JbAS0
7. B. Mcfarland rendered bis decision in
the case of Digory Hobbs vs.. The Amador
and Sacramento Canal Company es ais, on a
motion to vacate or modify an injunction
previously granted against defendants as
hydraulic mining company from failing into
the tributaries Of Ccsumnes river. Freeman
& Bates appeared in behalf of defendants for
the motion. George Cadwalsder for plain
tiff in resistance. The decision is as follows
In this case there has been submitted motion to
dissolve or modify the temporary injunction herein
before issued
The main defendant is q corporation. 1t was or
gained, as alleged in the complaint, for the pur
pose OF constructing bitches and carrying water in
the same to mines, and disposing OF the same, and
mining Herewith" II also appears from the com
plant and aidavts on file that defendant for many
years has had ditch running fr m the head waters
Of the Costumes river to place called Hill
Top, in which it has continuously conveyed
water to said lastnamed place; that at said
Hill Top defendant owns mines which 1t has for
many wears cont nuously worked with said water,
and that it has also sold wafer to Others to be used
in mining at said place. 1t does not appear that de-
PENDANT has been, is engaged in mining. or SELL
ing water for mining, at any other place HIil Top
is at tue head of Cooks gulch, which empties into
the Costumes river at Cooks Bar. The injunction
restraints defendant from dumping any tailings into
Cooks gulch or into the Costumes river, and from
selling water to the OF any mine the tailing5
from which would flow into said gulch or river. The
Injunction was granted without notice.
Counsel for defendant very forcihly argues that,
under these circumstanees the injunction
must be totally dissolved, because, without
notice, it suspends the general and ordinary
business of a corporation" Generally temporary
Injunction may be granted either before or after
notice but Section 53l OF the Code OF Civil Pro-
cedure provides that IAN Injunction to suspend
the general and ordinary business OF corporation
cannot be granted except by the Court or Judge
thereof; nor it be granted without due notice
OF the application therefor to the proper officers or
managing agent, of the corporation, except when
the people Of the State are party to the proceed
ings" Although this provision has always been
part of the statutory law of California, and a SINH
lar provision has existed in New York for many
years. fld no ldcial Interpretation of it in either
State and my attention has not been called to any
case in poin: elsewhere. 1t may DO reasonably
mooted whether this provision refers to the stopping
of the machinery OF a corporation-to the suspen-
sion of its corporate functions the temporary para
living of its corporate life, or whether it refers
to those acts-to that kind Of business witch
natural person may do as well corporation
and if to the latter, then what constitutes such
total suspension as would come within the provis
ion? ii the question were submitted to me upon
an original application for an injunction, would be
less embarrassed in determining it. The conclusion
to which have come is this: While | have doubts
as to the power to grant the injunction in this
without notice, l am not so clear about the matter
as to feel warranted in declaring il void from the
beginning, which would be the result of sustaining
defendant on this point. And | have alluded to
the question to this extent, so that the Bar may
consider it in future cases.
The motion to dissolve or modify this injunction
involves in some measure, though not wholly, the
general question of the right of hydraulic miners to
continue their business. Upon that general ques-
tiou-Nith the exception OF case recently decided
by this Court-there are no authorities in point
and no precedents TO follow. AS no other country
ever presented such spectacle as the present
fct between the mining and part OF the agricult-
ura interests Of California, have the Courts of
country been called upon to determine such ques-
ton as that conflict raises. But while neither the
Surreme Court Of this state, nor any of the Fed
eraI Courts, have had occasion yet to pass upon
the aus stiOn it has been determined to extent
at least by recent decision Of this Court, Judge
Temple presiding Irefer to what is generally known
as the Gold Run case. That case deliberately
prepared and presented. great many Witnesses
scientific and otherwise-from all parts of the coun
try were examined. Each side was represented by
able counsel The Judge before whom it was tried
was eminent in his profession and OF wide expert
.ence on both the IiSi pTiUS and Supreme bench. |
think therefore, that in the present unsettled state
OF the laws | may safely follow his conclusions, so
far IS they apply TO this case. From careful read
ing OF his findings and. opinion, take his e0nclu-
sion to be this That hydraulic miners have not the
right TO continue to unfortunately flow all the
tailings from their mines into the streams to the
injury OF riparian below; but that they may
continue to mine provided that by any they can
retain all Lfe neaNy ana allow moth
ing TO escape except the ght matter which is held
in suspension in the water. The learned Judge SAYS
- have concluded to frd Il at when the heavier
debris is completely impounded mining may be re-
sumed virtually refusing to hold that the plaintiff
may enjoin such operations as only corrupt the
water with mud and render it less suitable for do
nestle and other uses Perhaps / am somewhat
moved to this by the consideration that otherwise
mining can never be prosecuted at all. 1t will prob
ably be impraoticable to impound the lighter por-
ton of the sediment | confess | shrink from n
consequence so fAr-reaehing."
In some respects the at bar materially differs
from the Gold Run In the latter case the State
was plaintiff and represented, assumed to repre-
sent all the people, and all the interests injured by
mining. 1t involved questions not only of damage
TO agricultural lands, but of damage TO navigabie
rivers and the bay of San Francisco. The case at
bar is between Individuals and involves only dam
age to the private land OF plaintiff
Again, the facts of this case differ materially
from those of the Gold Run case. The motion was
submitted upon affidavits. These we're conflicting
contradictory and unsatisfactory. Both parties re-
quested me TO visit the premises and make a per-
sonal inspection OF the Mines the gulch the dams
and all the surroundings. This | did few DAYS
since, and my conclusions OF fact ara founded on
both the affidavits and my personal examination.
The hydraulic miners OF the upper Sierras, used
to piping against banks several hundred feet high
with corresponding hydraulic pressure, would
hardly call these digging at the Hill Top hydraulic
mines at all. They situated on the lowest part
of the foothills, and are composed OF small hills or
hlllocks surrounding the upper part OF Cooks
guleh. The gravel deposit ranges in hight
from a dozen to thirty or thirty five feet. The
average hight is certainly much less than thirty
feet The vertical hydraulic pressure from twenty
five TO thirty feet The water, therefore, comes from
the rozzes with very little force to bore into or
knock down the banks The process is more like
washing, or slucing, than piping. 1t is aided by
occasional blasting with powder; but still the
amount of material washed off is necessarily small
The bank is of reddish color, and is composed of
cobbles, smaller gravel stones clay, and some sand
The tailings from the Mines except the very heavi
est run through cut and fume and dump into
Cooks gulch. About 1000 feet below the dump
there is brush dam entirely across the guleb 1t
is about 800 feet long, and, when saw it q few DAYS
since, about nine feet high. 1t seems to be very
firm and strong. 1t has been raised gradually
as the tailings have accumulated above it. When /
saw it there solid mass of tailings above
it to within q foot or two OF the top. Some dis
lance above this dam the water spreads out in sew.
eral channels, which continually change and seem
to deposit nearly all the heavy material This dam
is NOT intended to ba water tight but to catch the
tailings and allow the water TO find its way through
the upper part of the brush. From point three or
four hundred feet above the dam, up to the dump,
the gulch is somewhat steep, but below the dam
the grade is very light and the surface quite fat
At point 2,270 feet below, defendant has con-
strueted another dam, which is made of timbers and
earth and is water tight. Tnis dam backs the water
so as to make pond about 800 feet wide and several
hundred feet long It could easily be made wider
and higher. Attached to this dam by f3od gate is
board iume which carries the waters to point about
300 feet from the river where they again dumped
iato the gulCh. Nothing seems to pass into the
river except such light material as is carried in sus
pension Heavy matter, in order to get into the
river, would have first to pass over at least $40
feet of surface before it reached the tailiugs held
back by the brush dam. 1t would then have TO be
carried the level surface of such taiings and
through the dam, which is not likely TO happen 1t
would then have to pass over nearly level sur
face for about 500 feet, and then through pond
of wafer four or five hundred feet and up over the
food gate of the lower dam. Such an occurrence is
scarcely possible certainly not probable. this
lwsver is upon the basis that defendant either by
charging the present dams necessity may re
quire, or by building additional ones, shall keep the
gllch up to its presen capacity Of holding ailings
which it viii be its duty to do. Between the present
dams there is for erecting several others The
average width of the gulch between these dams is at
least 500 feet; and l no difficulty, with proper
care and diligence in retaining the heavy material
for a LONG time to c)me- perhaps until the MINIS
shall have bsen exhausted.
But it is claimed by plaintiff that the dams are
liable to break and suddenly preeipitate upon the
lands below the accumulated mass # taiiings. Of
course, any lam may break although it is ev.de
that dam hled nearly to the top with solid earth
has to bear no such pressure as a dam of similar
hight filled with water. Whatever might lie this
danger in large rivers swept in food times by tor
rents gathered from drainage areas OF hundreds #
tb5us ands II acres, think that the appreheud
danger in this case has reasonable foundatio
The drainage area Of Cooks gulch is of the most
limited character. Its eEtire length from the
Costumes river to the uppermost point
from which rain water could naturally flow into it is
only one mile aud half. From the present brush
-