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

necessary. The elevation of the water of
the Yubs is above the hight of the land in
the city, and it has during all this time
| flowed over and deposited sand and debris
on the surrounding country. In 1881 the
south levee broke sc Linda, about seven
miles above Marysville. and rau over several
miles of country, preventing the raising of
crop that year. In June last
THE ENGLISH DAM
Near the summit of the mountain gave way
| and precipitated an immense torrent of Wa.
ter down the Yuba, which swept everything
before it. and it rose suddenly to q great hight
in the river. Near Msrysville it met with
some obstruction and tore away the levee at
three points, and damaged considerable
extent of country. Had the rivers all been
high when this torrent came down no one can
tell what the result would have been. Some
years these great torrents arc frequent. In
! 1881 the Sutter levee broke beoW the mouth
of the Yuba river and flowed over the plain.
! tiff's land, washing away his soil in many
places where it had been plowed, and depos
tied sediment upon it. One witness says that
gravel as Large as hens eggs passed through
the break. The food of 1862 oven h)wed and
covered the Hook farm, and it has been since
covered and large amounts of grain de-
| stroYed.
The defendants have attempted to show
that these overhows have been in cons
quence of an improper system of levseing,
which has had tendency to contract the
| outlets. There has been some testimony on
the other side on this point. 1t is probable
that they have not in all instances adopted
| the wisest plan in their efforts to protect
| their property. These works are always
| left to the judgment of men, and they are
rarely perfect, as it is scarcely possible
that any method unobjectionable to all could
be adopted However this may be, there
can be no possible doubt that if mining de-
bris had never tesn placed in these streams
most of this injury would have been averted
This foul water has come down. and it ap-
pears that large quantities of deleterious
matter are left behind to follow. Every break
i'll the levees has sent water
CHARGED WITH SAND AND DEBRIS
| Out upon the lands, aud has left it there at
the subsideuce of the food to work ont its
destructive effects. If the great food of
| 1862 brought down large masses Of material
deposited in the upper stream in previous
years, as is claimed by the defendants, and
! covered up the lower portions Of the Yuba,
what ia to be expected if there is another
| food of that kind that will bring down q
much larger accumulation of material through
channels now several feet higher than the
surrounding country? A concurrence of con-
| ditions, such as were present ia 1862, may
| come again. That concurrence of conditions
was high water in the Sacramento and all Of
its sffiuents on the 1st of January, 1862, and
immense deposits of snow in the mountains,
and a warm rain which caused melting of
the Snow, and precipitated the waters into
the valleys below. Should there be the same
condition of things in the present condition of
the water courses of that valley, no man can
predict the result, and the most casual OBJ
! Al L
ton OF things is alarmingly dangerous to the
residents of the valleys, and, unless the
action of the defendants complained of be
enjoined, there is no doubt that the result of
those acts heretofore developed to some ex-
tent will be increased, and that the result
will be grievous and far-resching. Nor eau
there be any doubt that the plaintiff has suf-
fered and is still suffering because of these
acts, which fill up the banks and beds of the
rivers and the surrounding country and bring
down Hand aud gravel to destroy immense
tracts Of farming land in the Sacramento
valley. If that does not constitute public
nuisance, then [ confess that 1 do not know
what public nuisance is. Il is that kind of
A PUBLIC NUISANCE
That entities a private party to relief. 1t
comes within the definition given by the Cal
ifornia Code of public nuisance for which
private party injured by it may maintain
an action. The Judge here read the sections
of the Civil Code defining public nuisances,
and then continued:
Are the acts complained of lawful; are
they performed under express authority of
any valid statute? Counsel for the defend
ants take the position that they are author
izsd, and they maintain that position rather
earnestly. On the other hand, arguments
| equally earnest and able have bsen made.
and numerous authorities have been cited.
have examined numerous authorities on this
subject. 1t is contended that the Legisls.
ture authorizes the use of the waters of these
rivers and Of the valleys for the flow and de-
posit OF mining debris, and if they are so
authorized the acts of the defendants are law
ful, and that therefore the results of their
acts cannot be nuisance. public or private.
It Is not pretended that the Legislature has
in express terms provided that the naviga-
BILE waters may be so used, but that authority
is sought to be inferred from the action of the
Legislature in encouraging the mining indus
try when it is evident that that industry can
not be prosecuted without injury to the navi-
gable waters of the State. 1t is sufficient to
say that the
LEGISLATURE HAS NO AUTHORITY
Whatever to say that the navigable streams
shall be obstructed within the State The
necessary result of the action complained of
both at common law and in the express Ian
guage of the Civil Code, already cited. There
is no limitation in the code which exempts
this from the rule. There is no statute that
expressly authorizes the defendants to send
their mining debris down, to the destruction
or injury of navigabie waters or private
property; and, even if there was a statute
authorizing such an injury as is complaioed
of against private parties, it would be uucon.
49, Il i
mining enterprise without reference to inju-
ries to property; it authorizes iS as legiti-
mate business. 1t is not the general practice
OF legislative bodies in this country. where
their powers are limited, to legislate upon the
various subjects except generally, and thst
in the exercise of the rights conferred it is
always done provided no injury shall be done
TO others. When rights sre granted or regu-
lated by the Legislature they must be exer,
cised with due regard to the rights of others,
and so exercised as
NOT TO ISJURE OTHERS.
Certainly there is no authority to interfere
with the vested rights of others. That ia
clearly recognized by the statute of limita-
tion in the definition of nuisances, and the
statute says in express terms that there shall
be no other Limitation. No intention can be
infer ed from any Act of Congress that has
been brought to our notice thst will permit
the injury of navigable waters or property.
Congress has no power in enumeratiag the
rights of vendees of its own property to in
terfere with the vested rights Of others, and
it cannot authorize or encourage the injury cf
private property. On the admission of Cali
fornis into the Union she became 6 sovereign
for all purposes, except as to such powers as
were expressly reserved by the Constitution
of the United States. The United States,
like any other owner of land may regulate
its sale, as 10 ths case of mineral land. II
may allow the mines to be worked free, OF it
may collect royalty but it cannot impose
conditions that will interfere with the rights
of other private owners who had purchased
them without reservations.
NO LICENSE To DO INJURY,
THE Judge here reviewed the various Acts
! OF Congress relative to the disposition of mia-
eral lands, and held that in no Act could it
be claimed that any license had been granted
to miners to iDjure the property of others.
In reference to the river and harbor bill of
! 1880, where an appropriation of large sum
of money was made by Congress for the i'm
| provement of several hundred rivers in the
| United States and among others the rivers
of the Sacramento valley subject Co injury by
mining debris, he held that Congress did
! simply assume the responsibility OF protecting