Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-01-08

1nere Is no SrUuuQ IN the psOpOslIlOn tnAJ
Congress has attempted to make the acts
complained of lawful, and these acts could
not be legalized by any Congressional action.
It is also claimed by the defendants that
these acts are authorized by the Legislature
of the State of California. There is no doubt
that the flow of debris operates to destroy the
beds of these streams, and interferes with the
free use OK them, and the property adjacent.
1t is not claimed, however, that the State has
authorized the miners TO fill up the beds of
these streams with debris to such sn extent SIS
to injury navigation, or to destroy land of
PROPRIEToRs WHO HAVE VESTED RIGHTS
In them. If these acts are authorized by the
State, have failed to find where the express
authority exists, and if it does exist it must
be valid statute. No authority to commit
the nuisance complained of can be gathered
from any statute of this State that has been
brought to our notice. The section OF the
statute which seems to be most nearly in
point on this subject is subdivision five of
Section 1898 of the Code of Civil Procedure
But that simply provides that provision shall
be made for bitches, pipes, dumping places,
etc, for working mines. An Act of Con-
gress authorized the States and Territories,
in the absence of legislation by Congress, 20
provide for certain easements over public
lands. and that was done in this State by
that Act. The State Supreme Court, in
one case, held that mining was not public
commission, and that it did not authorize the
use of the ravigsble waters of the State, or
the discharge of mining debris upon
THE LANDS OF RIPARIAN PRoPRIEToRs
Without condemnation and payment in the
mode pointed out in the statute. Instead of
inferentiallY authorizing the ini y COM
planned Of, that inference is directly the other
way. There is no authority TO do sn act that
would work an injury, public or private. or,
in other words, to do an act thst would con-
stitute public or private nuisance, and the
first inquiry to guide US is Was the property
injured purchased or condemned? 1t has
been settled in this State that property may
be condemned where large communities sre
affected, and it is claimed that the Legisla-
ture made that lawful by the Act to promote
drainage, which was passed in 1878; but that
Act does not authlrizs the commi.si of the
acts complained of as having been committed
by the defendant and others.
The Judge then reviewed the Acts passed
by TIRE Legislature Of California in relation
to the subject of mining debris, and he
with the statute relating to nuisances and
they in no wise authorized the deposit of
mining debris in the streams or the injury of
private land for such deposits.
He next reviewed the subject from con-
stitutionsl standpoint and quoted from the
Federal Constitution and from the Califor-
nia Constitutions of 1S49 and 1879, which
provide generally that
LIFE AND PROPERTY SHOULD BE PROTECTED,
And that no person should be deprived Of
either without due process of law, and that
private property should not be taken without
due compensation +; and he held that those
clauses of the Constitution were applicable
to the subject, and protected the proprietor of
valley lands from the deprivation of his
property without compensation. Consider
ing that such use of these lands for mining
debris was q public use, still the Legislature,
under these constitutional provisions, could
not make it lawful without providing for the
full compensation to the owners Of the prop.
erty, and providing that that compensation
should first be paid for the use of his property
without his consent. There is no authority
in the Constitution that will permit private
property to be taken for public use against
the will Of the owner without compensation.
The defendant in this case is 8 corporation,
and would fall within the provisions of the
POLICE POWER OF THE STATE
Which provide that corporations must con-
duct their business go as not to interfere with
the vested rights Of others. The provision
of the Constitution of 1879 was simed di-
rectly at corporations, and apparently con-
templated something of this kind. The nav
liable waters within the State are not the
property Of the State. They are a part Of
the public domain, and are held in trust for
all-tor the benefit of commerce and for any
other purpose. There are two senses in
which the rights of the State are to be con-
strued; one is proprietary and the other is
Sn1 ,-}a H.
State held the lands in the same manner as
an Individual owFs his lsnds; and
the governmental, where the title is vested
in the State for the benefit of the Govern
ment. And in that case the Government may
control it in toe interest Ct commerce and for
the benefit of all the people. Congress may
not control q nsvigable stream, except to
regulate it in the interest of commerce.
it has no further power over it than
it has over private property. If the Legis
lature cannot interfere with these navigable
stresms, it certainly cannot authorize the de-
PENDANTS to destroy them for public uses.
The Act of admission of California into the
. nion is conditional that
THE NAvIGABLE STREAMS
Within the State should be common high.
ways aud forever free to the inhabitants of
this State, and to the citizens of the United
EObaNeb uu1A arc ObsNLGSlcu ny dCtS suCu
as have been committed by the defendants in
this case, such navigation cannot be free. If
the Act of admission ia not valid as a mere
compact between the United States and this
State, it is valid "a an Act for the protection
of Congress- for the benefit of the people of
this State, of other States, and of foreign
nations.
1t is next claimed that the right to do the
acts complained of is authorized by prescrip-
tion, but certainly prescription will not
authorize the commission of public or private
nuisacces OF any character. No lapse of time
can legGlize nuisance against the State but
even if it were not SO, the express provisions
Of Section 1890 Of the Civil Code would pro-
hi5is it. This position is not oontroverted by
any of the text writers, and is supported by
numerous authorities, which were here stated
by the judge. A public nuisance never be-
comes legal. It is
ABSOLUTELY AND ALWAYS WRONG.
The act being unlawful, provided the party
sustaius special injury from the nuisance, he
is entitled to maintain private action.
1t has been claimed that the plaintiff in
the case is barred from commencing this &C.
ton by the lapse Of time. THIS case affords
a striking illustration of the wrong that
would resulS if that rule should prevail here
in The case of public nuisanc5 Of this char
aCter, and II private CITIZEN should lose bis
right or be compelled TO take the burden of
the expense Of litigation in matter where
the Injury has been Co tbs public as well as to
himself. What is nob)dv's business is every
hody's business. Time flies while one waits
for another. Time ia no bar to public nuis-
ance which might increase every hour, and
which it Is nobody's business to prevent. No
matter how greatly the property is in danger
private parry may shrink from undertaking
TO incur al expense necessary to establish his
rights. No right Of prescription or lapse Of
time can defeat this suit. In order TO estsb-
lish an easement over private land it must be
adverse and so lpown 60 the owGer, and it
must be uninterrupted, according to Green
leaf. The enj 5ymeDt Of the easement must
be not only adverse but continuous. a con-
siderable portion Of the argument in this
case was directed to
THE SUBJECT OF ACQUIEsCENCE
On the part of the plaintiff and the injuries
duct recognizing the existence of prosecd-
tiop, and, no doubt, in some sense, at leatt,
to carry the prosecution into effect. Ac-
quiesceDcs is necessary TO exist while the
prosecution is going on in which the right OF
action would otherwise arise more delay,
more suffering; the time to elapse without do
ing anything is not acquiescence. That is
the definition that will be found substantially
done to his property. The fact that the plsiutiff
allowed time to elspse without commencing
suit, as showing scquiescence, is largely de-
pendent On circumstances. For instance
vkn-o h., -, L.,-.