Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-11-28
WHOLE NO. 1O,487.


/ dumped by the defendant into the North Fork
! of the American river has been washed down
| said river by the water, and commingled with
| tailings from other hydraulic mines. and still
other material, which is the product of natural
| erosion. has been deposited in the beds and
| channels of the Sacramento and American
| rverS, but mostly in the American river and
| upon the lands adjacent to said rivers, and that
| by said mining of the defendant and other
mines tho filling up raising and Swallowing OF
said rivers has been material INCREASED, 10 the
\ impairment of the navigation of the Sacra-
| meuto river. and 10 the excessive overflow OF
the lands adjacent to said rivers to the great in
! Jury of d>llud, and damage, discomfort and
| annoyance of a'great number of citizens of the
State owners of said land, and residents of said
valley
The Court found that a public nuisance had
| been created when this action was commenced.
And the Court also found that the defendant
was adding to- and unless restrained. would
continue to add to the distractions which con
| Stitued the nuisance and thus to aid in in
creasing and perpetGating it. This made n
| proper case for an injunction.
Appellant attaches grave consequences 10
! further finding, which is supposed 20 qualify
| those which precede it
'On the American river and its tributaries a
| vast amount ui mining was done in early times,
| and ny to this time great deal is being done
| beside that by the defendant. No other mine
| contributes annually more dctritus to the river
| than the defendant; Stiu ! am unable 10 say
! that defendants mine alone, without reference
| To the debris from other mines, materially con
| tributes to the evils mentioned OF, in other
NOItlN, II liCIC NSIC no ulillilE OletIOttlS SAW
| those of the defendant, | am not prepared TO
| say that it would materially iujure the valley
| lands or the navigation OF the river. 1t is the
| aggregate of debris from all the mines which
/ produces the injuries mentioned in these find
| ingS.'
! IL is urged that while the complaint alleges
/ the defendant has materially contributed and
| viii materially contribute 70 the nuisance the
| Judge below has declared " he is unable to say
! that defendants mine alone materially con-
! tributes 10 the evil, which (it Is ciaInedl is
I =
materially CaujubuIe; OF the Court has failed 10
/ find ON the H,JtC'iHi issue. Hut the meaning OF
| the language which Immediately pTecedeS IL is
! rendered very clear 10y the clause IN the nndlng
| last quoted. "Or. di Other cords if there were
no mining operations save those q! the defend
ant am not prepared to say chat II would ma
terialiy lnlurS The valley lands, or the naVlSa-
zion OF the river
But the contributions of defendant may have
been material substantial, real and appreci-
ably capable of rendering more durable and
more Injurious an existing nuisance although
of themselves they would not IN their aggregate
have produced the mischief mentioned IN the
findings. There is no contradiction therefore
between the finding last referred TO and those
which determined that q large portion OF the
material dumped by defendant into the North
Fork has been washed down and deposited III
the beds and channels of the Sacramento and
American rivers. etc. None of the findings can
bc construed as deciding that the deposits made
by defendants have contributed or Will con
tribute TO the shoalng of the waters in so slight
degree not substantially 10 affect the build
ing up or continuation of the distractions 10
their how in the natural channels OF the rivers.
MChtNsrRY, J,
Whether Kcyes vs.. Little York Company (5S
Cal, 72D is or not overruled by Hilmau ys.
NeWington (57 Cal, co. express no opinion.
No question of that kind, in my judgment is
involved in this case or necessary to its dcci-
sion, and therefore forbear 10 give any opinion
upon it. As 10 the other points discussed in the
opinion of Justice Mckee, agree With what is
said, and the conclusion reached by him
THORNTON J.
We think the decree, in its entirety, should be
affirmed. SHAKl~TElN, J.
Ross J.
IN BANK.
The People vs. The Gold Run Ditch and Min
ing Company, No. Stt5 This is counter
appeal from the last clause III the judgment en-
tered i'll this case.
AS we held on the appeal of the defendant.
the plaintiff was entitled. upon the finding of
! facts, 10 perpetual injunction TO compel the
| discontinuancc of the acts complained of; the
| law gave il, and the Court awarded il; but it
made the Judgment by which it awarded the
| perpetual injunction subject to this condition.
| viz: The said defendant may, at any time, as
! it may be advised, apply To this Court to have
! this decree and restraining order modified, or
vacated, and set aside. And whenever, upon
| such showing, il shall appear that efficient
means have been provided To impOund. detain
and hold back such taillllSs MT any point on
/ said American river above Alder creek, and
that such means are sufficient To detain all bowl
! derS cohble-stones gravel and the heavier sand,
l
! said decree vacated and set aside.
| We think this was erroneous; for the plaintiff
was entitled to final Judgment absolutely, or
! il was not. The Court adJudycd that II was en-
/ titled to perpetual injunction, and that adJu-
dication dGinitively settled the rights and rela-
tons of the parties to the controversy rs 70 the
| matters il litigation between them. BY the
/ Judgment it finally determined that certain
| acts as performed by the defendant, and threat
/ ened to be continued at the commencement OF
/ the action, amounted to a public nuisance,
] Gu3OlIDfi.
/ thus finally determined could not be subjected
/ to be disturbed orchanged, annulled or set aside
/ upon the performance by the defendant Of new
/ and independent acts, Ut somc near or remote
period in the future
I It is not the duty of n Court to make provision
in its final Judgment for Il rCOpchIug or renewal
of controversy when il ClOsls by its judgment
PeipHb}i.de ut Sd! EHiS itH. As Is said III Joyce
on lujuuctions (vul. !, p. 100; Where
plaintiff has proved his right 70 an iniunc-
ton against a nuisance or other injury. II Is
no part of the duty of the Court to inquire in
! what way the defendant can best remove II, and
the plaintiff Is entitled to an injunction at once,
! unless the removal of the injury is physically
impossible; and it is the duty Of the defendant
to find his own way out OF the dllculty, what
ever Inconvenience or expense IL may put him
I 10 (ctc also AttoTney.Heneral rs. tue Colney
Hatch Lunatic Asylum, l.. r. Chy, App, li6)
Besides, while the plaintiff was entitled rs
matter of right, to perpetual injunction pure
! and simple, the provision inserted in the Judg-
ment to that effect in favor OF the defendant il
OF no benefit TO the defendant for il II be posi-
| bic to permanently impound the debris, etc.
which the Court perpetually cnjoins it from
dumping into the American river, the defendant
has the right to adopt such means as may be
within its power for that purpose and the right
to do so exists independent of the judgment
and may be exercised nj all times, without
reference TO it. The perpetual injunction does
not restrain the defendant from conducting its
business in u lawful manner, and any means
adopted to that end are lawful.
That part of the judgment appealed from is
therefore reversed. MCKEE, j.
We concur:
MYRICK, j.,