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

inc sased year after year for the past ten
ears, and that, if the defendants continue
to work their mires as they have done, this
increase may reasonably be expected to go on
every year, while it will require an addi'
tiopal outlay for the erection and elevation I
of levees each year, and at great
RISK AND DANGER TO LIFE
And property in their vicinity. There is no
direct evidence of acquiescence in this case.
There ia no reason for saying the plaintiff or
his co-suff :rers have by the deposit of mining |
debris in these waters ever acquiesced IN
these things which viii finally result so ipju-
riously TO him and to them. Rather 1t may
be said they have borne the burden, not SO
heavy and dangerous at first, but it gradually
grew more so until it has become uusupport
able, and which, owing to the state OF things
heretofore existing in the State of Calitoy-
MIA, they coald not well avoid If they would.
But in the latter year followed the
introduc ton into the mines of these wen
derful hydraulic engines, the Monitor
and the Little Grant, which threw streams OF
water upon the gravel and sand-bauks, in
some instances seven inches 10 diameter, and
rocks and material have been thrown very
powerfully from them, and sometimes great
degree of injury is produced and threatened
to oe produced by this continuous and I'M
limited washing of the mountains into the
ffyers or on to the adjacent land, to The detrI.
-nent Of the agricultural and commercial
interests Of the communities il juriously
affected thereby. These peoples have now
BEGAN TO MAKE THEMSELVES HEARD.
Since these persons first suffered from this
wrong they obi acted to and protested against
its continuous work. They have in the per-
son of this plaintiff appealed to this Court for
the relief to which they are entitled. There is
no statute Of limitations applicableto thissui
Section 319 Of Civil PoocedUre of California
is cited by the defendants, but that IS case
involving the right of actual possession, or to
title of real property, but rot to the mere
easement of the lard of another. On the
argument counsel for the defendants insisted
that dams could be bailt in the Yubs above
! the valley-ss for instance at place called
! the Narrows, above MsrysYille-thst would
prevent the fl)w Of debris from the mines
| end retain it in the mountain course of the
river and upon the testimony introduced IN
this case on that subject, it wss asked that II
| the Court do find that the defendants have
committed q nuisance to the injury OF the
| plaintiffs that instead of enj lining them d.
| rectly it should require them to construct or
cause to be constructed, dam sufficient to
| impound their debris in the bed of the
| streams before It could reach the valley, and
in the mean time that they should be allowed
to conduct their mine as at present. In other
words, the Court is asked to allow the de-
PENDANTS to
CONTINUE TIE ACTS COMPLAINED OF UNRE-
STRAINED
Until they can try the experiment of abatiDg
| il or preventing it by means OF dams. In
my Judgment this would be most lame and
inpotent conclusion from the premises. Ii
the defendants can devise a means to I'M
! Il i 80.
they are at liberty to do SO,
so far as the plaintiff is concerned, or the ex-
pertinent could BE- tried at the ex-
peuse q the plaintiff. The injunction
which the plaintiff seeks will not pre-
vent the defendants from building dam, if
they are otherwise entitled to do SO, that
they may ultimately work their mines, if 1t
is found that they can be worked by such
means without injury to plaintiff.
! Whether dam can be constructed TO with
stand the pressure to which it will necessarily
be subj scted under the circumstances, or
whether it will be Of any material use
in preventing tire debris from flowing
into the river below, are questions upon
which l am not fully advised, but from the
evidence in the case and my observation IN
the premises, I am strongly impressed that
| suffi Ct Mt of the debris would still pass over
the dam il suspension in the water to malu-
tain and continue tee increasing ana present
filling upSf the river. Besides, it is & very
serious question in my mind whether any
person or community can or ought to be sub
| 5ected to the continuous peril of life under or
below such dam as this must necessarily
be, and if it is made high enough to impound
the course of the material, they may be
placed directly in the pathway Of an impend-
ing avalanche.
I think the plaintiff is entitled to the relief
asked.
NOTICE OF APPEAL.
At the close of the reading of Judge Deady's
concurring decision, notice was given by
attorneys from tbs defendants that the case
would be appealed to the Supreme Court of
the United States. a stay Of execution WAS
Gsl,ed for that purpose, and granted.