Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-01-08
JDLIEY RECORD TXsON SERIES.
I NOLU NE NNIai,-SUHBER III.

other parties. No specific part of any injury
cou'd be possibly traced to any particular
man. Miners are generally nonadic in their
habits. At least they were until recently,
and whea this nuisance began they were 60
ing from place TO place.
In that first suit to restrict this nuisance
which reached the Supreme Court OF this
State, the only point that WAS ,hen decided
by the Court was that the defendants must
severslly be euJoiued; that each cOntri uted
to the nuisance. That was The >,se Of heyes
vs. the Little York Mining Company. If
such rule as that prevailed caLcerning the
bringing of suits, II could have ittle force so
far rs scquiesceuce is concert eG, because .
suit would have to he brought against each
separate trespasssr that contributed to the
injury. Aud it could hardly ae contended
that if the plaintiff failed 20 commence his
suit against them all separately within the
time allowed by the statute of limitations,
he would be deemed to sCggiesce as to
either one that was not sued. II would he
IMPOSSIBLE To MAINTAIN ANY SUCH RULING.
1t would be preposterous to maintain that
such s rule could exist ia isw. The law
never could require such vigilance and COM
pei the plaintiff to find ous wlic, of large
number Of distant individuals, were concur
rent trespasssrs. This is a public suit, in
which oil who are injured Sre interested TO
the extent Of their injuries.
It has been strenuously urged thst the
complainant pays but small share of the
expenses Of prosecuting this suit; that he IS
a mere instrument to procure jurisdiction.
The same might be said OF any other suit eX-
cept a. TO the mater of joris l7tion, and ss
to the right Of parties t. select who shall
be their representative.
The testimony shows TINT ti expenses in
this suit are paid by the Anti u =. ris Associa-
tsor, comprising some four cv five counties
affected by this nUisance-N obs, Sutter,
Yolc, Sacramento and CouNt,ss parts Of
Placer. The counties themselves also con-
tribute TO the expense Of biirgiGc this suit.
On the other hand, the defense s, paid by the
Mines Association, compose If citizens
living in the counties slfsc es ly this suit.
You may cali it what you may, here can be
no doubt but what it is . Suit tetWeen the
miai1g counties and tee val leF uGties. In
view Cf the fscts that have q. Sc oped in this
case-that neither hs complain ?, Woodruff.
nor any one man, however rue his property
has been injured, could entez 10 tu this htiga-
ton against the con bined uili. counties in q
suit ss private prose cutUr; l. is very cer-
tain that when a party hss b5eu damaged 70
a very considerable extent, II would be use
less to cope with the combined ,uTCes above
stated. and ruiuous to him tiusg gcially 10 at
tempted the whole burden q the prosecution,
His interests are not sufficient O. justify the
contest. aud no other one man Csu afford to
mske ihe effort.
These facts are referred TO ss .egitimately
hesriog upon this question oi Rcquiesence.
A man may we'll delay the il T. ution Of =
suit Of this character when hs conscious OF
his absolute inability to cope v lth the oppos-
ing party, and when he knows nat he will
sutf, more by seeking the remedy than to
sUcCUMB To THE RUIN.
And vet in 10 sense would ne be cog Dg
the validity Of the ad verse claim msdu q. lst
him. The mere delay of woodruff oil his
co-sufferers cannot be weigh,C as bea ing
against him on the question Ci acQuiescelce,
Oae may delay because he asseGts and acqui.
esces to the adverse claim, ard Auother may
delay because Of his inability 20 meet the op-
posing powers. There has bsen uo evidence
offered that tends to show the assent or ac-
Quiescepce on his part nor is there any evil
dence that the mere fact that the defendants,
with other miners, are ContinUjT to discharge
the mining debris into { he streams below their
mines and upon the lands q complainant
adversely. and therefore secured su easement
by prescription for the deposit Of their debris
on the lands below. In my Judgment the
fact that the defendants, i'll connection with
other
MINERS HAVE POURED THEIR DEBRIS INTO
THE RIVERS
Eighty miles away in position where the
annual currents would carry 1t down and
dischsrge it upon tho property Of plaintiff
and others to their great damage. That is
not sufficient evidence OF open, notorious and
aiverss claim or easement over the lands Of
the inhabitants below-.hat does not con.
stitute sp adverse claim that would justify
sn essemeat being created by prescription.
Within the last i've years tie miners, Of
their own motion, expended $50, 600 in build
ing q levee eight miles long on north side
OF this river, running up 10 ths foothills, and
Of which these oeiendgn.s contribute so per
cent, for the very purpose Of Coutning the
dsbris 10 the bed OF the river and preventing
it from spreading ever the adjacent country,
including the lsud in controversy Ii the de-
PENDANTS then made open, sOrious and
adverse claim OF right against tie complain
ant, iuf3r thGE IL was q psr5 Of their duty
to protect the lands which they claim hey
had right 20 cover. Were tney rot we'd
by the conscientiousnes5 thet they ", COM
mitting nuisance which, unlass o tied.
would Decessitste the SUI pension Of { Op-
erati5Bs and appeal Jp the Court re-
dress? Which is the more
REASONABLE HYPOTHESIS?
So also the complaint in correction with
other property similarly situated, but not yet
destroyed, upon which the debris would be
poured. Lavees have beer constructed for
the purposirg Of preserving j., and these
persons have ever since, from year to year,
taxed themselves in an amount equal to the
whole of the net income of their property to
protect it. Pe,pe i'jurcd aRve right to
protect themselves by other meads than legal
proceeding Improvements
The Court then reviewed st length the his
tory of the mining debris iiisasion in this
State. taking up eacl, Case slil.in, and stat
ing the points involved and he results at
tanned He also id that is.h were relied
OF, but to his mind the pasitil vas not well
taken. He said thai this il 3 ss that has
TO parallel in the books. II wsg new, and
that the rules of law must he reasonably if
not literally applied. He seit at length
on the defense, which sausbtto justify on the
ground of q custom Of miners. and he re-
viewed the various statutes nn he subject,
and held chat there was 10 au acrity for the
acts complained Of in any statU { recognizing
mining custom.
THE REMEDY.
In conclusion, in speaking % the subject,
"Wh3t shall be the remedy o. lie said: Il
would be difficult 10 spp.eci4 too highly
the importance Of the mining Iaterests. The
fact IA patent that immense SUES of money
have been ard are now employed in this
branch OF industry. The boldnt ss with which
invested large amounts of cspitsl in hydraulic
mining, and have brought ou5 expensive
machinery to engage in tins business, and
have employed engineering skill, naturally
excite cur wonder aud unbound 81 admiration.
In view Of these III contested, ;ndisputRble,
and well-known facts, no ocs can but en.
courage efforts to bring about remedy Of the
grievances complained of, anu which must, if
not adjusted, pat an end to hydraulic mining,
We have therefore sought, with painful
anxiety, some other remedy, tut none has
bsen suggested which appear so Us to fully
meet
THE EXIGENCIEs OF tbs CASE,
Or, at least, nolo available 10 the present
stage of the case. TeFo we're sugPested by
Colonel Menden. Ficst-Tae purchase of
large tracts of land in the val y, which are
now or may be permanently covered with
material upon which the debris can be
drained and the lands used as e settling reser.
walton. Second-The building Of impouud-
ing dams to hold back tbs heavier portion of
the debris. The first seems 70 be regarded as
too expensive to bs feasible aud the second
one is the only one considered in this case.
Much testimony has been taken as to the
prscticability and safety of the plan. 1t is
usually the case that views of different engi-
neers and experts distinguished in their pro-