Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-11-28

And it is attempted 10 sustain the contention
by the eases of Chapman VS.. Palmer, a n y. 81;
Schuylklll Navigation Company vs. Richards, -
Penn, 1i2; Selliek VS.. Hale. A. Conn. 26O, and
keyeS vs. Little York, 5S Cal, 72i.
The first three of those cases were actions on
the case for damages; the first. for poluting the
water of stream by the discharge of sewage
therein; the second, for the filling up of the
basin of dam and water power with coal dirt
and waste material cast into stream by scpa-
rate collerieS working their mines on the stream
independently of each other; and the third. for
the overflow OF brook obStructed by the defend
ant and other persons who We're not parties to
the action Each of those eases was decided
upon the principle that where several persons,
acting independently OF each other, engage i'll
the commission OF wrongful acts, the tortS are
distinct and not joint; and each is only Scverally
liable for the injury caused by his own acts, and
not for the tortS of Others with whom lie was not
acting in concert. There can be no doubt of the
correctness of that principle, and of its appica-
biity to an action at law for the recovery of
damages for the violation of private right.
But in the case of Keyes vs. Little York the late
supreme Court otthiS State applied the prlnci-
pie TO an action in equity 10y which the plaintiff
sought 10 cnJOln number OF persons VINO,
without pTiVity or concert OF action. contributed
TO the washing down from their mining claims,
mining debris into stream winch carried II
down and spread it over the plaintiffs land.
rendering ii valueleSs. To the complaint III the
action the Court sustained demurrer upon the
ground of miSiojnder, because all who contrib
uted to the injury complained OF could not be
Joined as defendants without an aVermeut that
they acted in concert in the commission Of the
wrongful acts charged against them.
That case, however Was practically ovcrruled
by this Court, in Hlllmap vs.. NcWlngton, 81
Cal, e.. That also was the case in which the
plaintiff sued Il number of pcrs 1ns to recover
damages for the wrongful diversion of the
water of Il stream, and 10 perpetuallv cnjoin
them from diverting the same. The defendants
answered as in keycS vs.. Little York. that they
were improperly joined in the action, because
they acted seyerally and not jointly But this
Court said: " Each of the defendants Divers
some of the water, and the aggregate reduces
the volume below the amount 10 which the
plaintiff is entitled. although the amount
diverted by any one would not. All who
act must, therefore, be held To act jointly. and
the damages and costs may be QpportiUned by
the Court sitting as Court of Equity. This case
clearly recognizes the equitable principle that
in an action TO abate a public or private uuiS-
ance all persons engaged in the commission of
the wrongful acts which couStitutcthc nuisance.
may be enjoined jointly or Sevcrally. II Is the
nuisance itself which, if destructive of public
or private rights of property, may be eniOiued.
The King vs.. Tratiord. l Barn. and A, STi
criminal action for public nuisance to
public canal navigation established by Act of
Parliament. The jury found that the acts Gre
ating the nuisance were done BY the defendants
separately; but it was held, nevertheless that us
the nuisance was the result of all those acts
jointly, the defendants were rightly joined in
one indictment which stated the acts 10 lie
several
Whenever an indictahle nuisance exists there
is u coordinate remedy in equity 10 abate IT by
injunction. In an equitable action for that pur
pose, there is generally raised no question of
damages. Until the adoption of the codes such
question could not be raised in an action in
equity for the abatement of Il nuisance. The
only question was whether the nuisance com
committed; and it was no answer in such an
action, where there was no question as to sepa-
rate or joint Inability for damages in the case, to
say that other persons were committing the same
sort of nuisance (CrosSley d Sons VS., Lightowier
/. L, Eq. Cas-, 279; Chipman vs. Palmer, ~
\. Y, 5l.) So in Noodyear VS.. Shaeiler. 81 Nd,
., il is said :" 1t is no answer to a complaint
of nuisance, that a great many others are com
mitting similar acts of nuisance. Each and
every one is liable to separate action and 10 be
restrained. = The extent 10 which the
appellee has contributed 10 the nuisance may
be sligh. and scarcely appreciaDle. Standing
alone it might well be that it would only, very
slightly, If ut all, prove asource OF annoyance.
And 50 ii might be, rs to each of the other
numerous persons contributing to the nuisance.
Each standing alone might amount TO little or
nothing. But it is when all are united together.
and contribute to a common result, that they
become important as factors in producing the
mischief complained of. And ii may only be
after, from year to year, the number of contribu-
tors TO the injury has greatly increased, that Suf
ficient disturbance of rights has been caused TO
justify complaint. In that state of facts
# each element of contributve injury is Il
part of one common whole. and to stop the mis-
chief in the whole, each part III detail must be
arrested and removed
But it is also claimed that the defendant has
acquired the right from custom, and by pre-
cription and the statue of limitations, to use the
American and Sacramento rivers rs outlets for
its mining debris; and that i'll the exercise Of
this right il cannot be restrained III its business
of hydraulic mining Notwithstanding the couse-
quent injuries to those rivers.
Undoubtedly the fact must be recognized that
in the mining regions of the State, the custom of
making use of the waters of streams as outlets
for mining debris has prevailed for many
years; and as a custom 1t may be conceded to
have been founded IN necessity; for without it
hydraulic mining could not have bceR CconOm-
ically operated. In that custom the people of
the state have silently acquieSccd, ana upon
the strength of il mining operations. involving
the investment and expenditure of large CAPT
tai have grown into legitimate business en-
titled, equally with all other business pursuits
in the State, TO the protection Of the law. But
legitimate private business founded upon a
local custom may grow into Ii force TO threaten
the safety of the people and destruction of pub
lie and private rights; and when it develops
into that condition. the custom upon which il
is founded becomes unreasonable because dan
gerous to public and private rights. and cannot
be invoked to justify the continuance of the
business ii Gn unlawful manner. Every bEsi-
ness has its laws, and these require Of those
who are engaged in it to SO conduct il as that it
shall not violate the rights that belong to others
Accompanying the ownership of every species
of property IS Il corresponding duty to so use it
as that it shall not abuse the rights of other
recognized owners Sections Sl79, S5l4, c. c.;
73l, c. C. p
Upon that underlying principle, neither State
nor Federal Legislatures could. by silent acQUi-
esccnce, or by attempted legislation. take private
property for private use, nor divest the people
of The State Of their rights in the navigable
waters of the State for the use of private busi-
ness. however extensive or long continued
As we have already SAID the rights of the peO-
pie in the nayigGble rivers of the State are para
mount and controlling, The STATE holds the alb
S0lute right to all navigahe waters and the soils
JIDdpT them f0 n ip1 i'm
them which may have been surrendered to the
General Government. (Martin vs., Wade, I3 Pc
ters no. The soil she holds as trustee OF pub
lie trust for the benefit of the people; and she
may, by her Legislature, grant ii to an indi-
yidual; but she cannot giant the rights of the
people to the use of the navigable waters flowing
over il these are inalienable. Any grant ofthe
soil, therefore, would be subject to the para
mount rights of the people TO the use of the
highway. And such was the doctrine of the
common law. The 5aS pricdtit,n," says Lord
Hale in De Jure GdFiS, p. -, must not prejudice
the JUS publicUm whereWith public rivers and
arms of the sea are affected 10 public use" 1t
is, therefore, beyond the power of Legislatures
10 destroy or abridge such rights, or to authorize
their impairment.
As to the claim of right derived from prescrip-
tion and the statute of limitations it is sufficient
to say that right to continue a public nuisance
cannot be acquired by prescription. tRetts VS..
81 Ind, 1@9; Boston Rolling Mills VS..
Cambridge, III Mass, 336; Wright 4 Rice vs.
Moore, IS Ala, 593; People vs.. Cunningham X
9 Wend., 3l5) Nor can it be legalized by lapse !
of time. (Sec 3i90, c. c. Against it. however |
long continued, the State is bound to protect the
people, and for that purpose, the Attorney
General as the Law officer of the State, has the
power to institute q proceeding in equity in the |
name of the people to compel the discontinue |
ance OF the acts which constitute the nuisance. |
County of Sacramento vs.. the Central Pacific !
Railroad Co.. X Pac. c. L. j., q; 81 Cal, 2j0 |
People VS.. Stratton, p Id. 2i2; Yolo county VS. !
3G ID, 1881 As was said in People |
VS.. Booth, 3 y. Y, 397: The remedy to prevent
the erection of q pucpresture and nuisance in u |
bay or nayigable river. is by injunction at the |
suit of the people by their Attorney General. |
For all the people of the State are interested III
the question and have the right to use ali bays |
and pavigable rivers within the State and l |
think the Attorney-General may maintain an !
action in the Game of the people OF rhe State to
prevent the obstruction OF a public highway, |
which all the people have a right 10 travel be |
cause all of them have an interest in such high |
ways
There is no preiudcial error in the record. !
Judgment for perpetual injunction and order |
affirmed. MCKEE, J.
We concur:
MYRICK, j.,
MORRISON, c. J.
CoNCURRING OPINIONS.
concur in the conclusions reached by Jus
tice Mckee with reference to the questions by |