Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-01-08
THE DECISION.
IcoNr1NUED FROM FIRST PAGr

uoWh w age DeiOW' II o't
that the de- .enatF!Ss be perpetually epjoined
from de,ooss,z1g debris in the streams, hut
said tIast IF SC is possible for some mode to be
devised That will successfully and safely CD
viate ts,e injury complained OF, clause
wo,sls be inserted in the decree granting
leave to the defendants to move 10 the future
Son a modification of the decree so as to per-
nit the resumption of operations, under
proper restrictions and conditions.
Opinion OF Judge Deadly.
At the conclusion of the reading OF the
opinion by Judge Sawyer, Judge Sabin read
the following opinion by Judge Matthew
Deadly, substantially as follows;
I fully concur in the learned arc very able
opinion of Circuit Judge Sawyer, IN both its
reason and conclusion. 1t has exhausted the
subject, and leaves nothing to be added by
way of statement, argument, illustration or
authority, Under these circumstances, but
for the magnitude of the subject and the
great interest felt in the question. would
not feel it necessary to say more than this.
AS il is. [ shall only briefly state the con-
clusion | have formed frem the argument
and from a personal examination Of tte
mines, mining operations, waterways and
the adjacent country. & am by 10 means
uuccncerned or Indifferent TO the effect OF
this decision upon the large amount I CO l;al
invested in these mines. But it is one CT tie
fundamental ideas Of civilized society, and
particularly such as are based upon the COM
mon law, that
No oSE SHALL USE MS PROPERTY so AS TO
TNJURE THE PROPERTY OF ANOTHER.
From this sautary rule none are excepted.
Not even the public; and the defendant must
submit to it. Without it the weak would be
at the mercy of the strong, and might would
make right. 1t is admitted by the pleadings
and upon the argument of this case that the
defendants by means of hydraulic mining,
carried on upon the headwaters of the Yubs
river, materially aid in producing the follow
ing results:
First-The water of that stream and the
water Of the z Gather and Sacramento rivers
have bscome foul, SO as to be unit tor ordl-
nary domestic purposes.
Second-The beds of those rivers are con.
tinually being filled up with the debris OF
such mines, 80 rs to materially impair the
navigation thereof, and causing them to over
flow their banks and discharging their tall
ings upon the adj AGENT agricultural lands, to
their injury by washing away the soil and
the improvements thereon; the depositlng
on the surface Of them such debris so as to
render them wholly unfit for cultivation.
Thicd-The property in the town OF Ma:
rvsville st the junction of the Yuba and
Feather rivers is very much in danger OF be-
ing OVERT owed and seriously damaged by the
foods to prevent which the owners thereof
are and have been compelled to construct and
maintain, at large and continued expense
levees around the greater portions OF that
town.
Fouryh-The filling of those rivers from the
discharge of debris in them there is materially
and constantly increasing from year to year,
and in case Of unusually high water it m ~ and
probably will be subj ct TO a sudden increase,
30 that there will be an injur resulting there
from to the navigation OF those rivers and the
property adjacent thereto. And the sudden
filling Of the rivers will necessitste a hight
ening If the levees and at additional cost; and
the cause thereof Is the hydraulic mining by
these parties carried on. Undoubtedly this
is the case. Conceding that the Injury CON-
mitted
IS A PUBLIC NUISANCE
And the plaintiff, being especially injured
thereby, both in his farm and his private
property, undoubtedly has the right to main.
tain this suit for relief, and in consideration of
the gu sstions which ari e in this case he
ought to be regarded, rot an isolated indi-
yidual suffering a great wrong, but as
a representative OF his co-sutferers in
that community from the same wrong
of which be CO nplains. Ga the part of the
defendants,
act, there are raised three points:
First-That the United Ststes and the
State have impliantly authorized the defend.
ants and all other hydraulic miners to send
their debris down these rivers regardless of
the Injuries conse quent to their navigability
and to the adjacent property.
Ssclnd-That the defendants have done
the things complained Of for so long time,
and under such circumstances, as to acquire
rsrhH 70, r,,, tfr,f11 he SON
Third-That the suit is barred by the
statute OF limitation of the State-Sections
319 and 34S of the Code of Civil Procedure.
In the exercise of S power TO carry on
commerce and establish post roads, etc, the
United States may impair the navigsbility OF
water course within State. but it has no
power, either as a landowner or sovereign,
to permit the obstructing of the navigabiiity
of such waterways for the mere purpose of
facilitating an improvement upon the public
land either for itself or its grantors The
United States have not attempted nor in
tended to confer upon the defendants any
right or privilege to foul or to fill with debris
the waters Of the navigable streams, Eor in
any way to iniUre the property of individual
citizens or to impair the use or enjoyment
Shereo. The Act of CONGRESS, July 20,
1866 and the Act of July 9, 1870, and the
Act Of May 10, 1872, amendatory thereof,
occupation of the public mining lands, and
to provide for their being sold under certain
circums. suce7 subjected to the power of the
S ate to make rules concerning the ease nents
and drainage, to their complete development.
But, further than that, it was q subject upon
which
CONG EBSS DID NOT POSSESS THE POWER OR
AUTHORITY TO LEGIsLATE,
And it did not prevent the State from eXer-
cising whatever police power it might have
the right to exercise upon the subjsc The
State has not authorized the defendants to
use waterways and adj AGENT lands for the pur-
pose OF depositiug therein or thereon their
mining debris. otherwise than under Section
1885 Of the Civil Code, which provides for
dumping grounds, etc, for Mines and that
they can be obtained ny the exercise of tbs
right Of eminent domain 80 being for the pub
lie use. The Slpreme Court of this State
has howe ser. decided that under that section
a single person cannot condemn private prop
erty as dumping OF flowing place for ruu-
ming debris, and it is difficult to see on what
ground the tsking Of property by a number
of perscus for such purpose can be held TO
be the taking Of private property for pub
lie use But be that as it may, this section
does not authorize the use OF the plaintiffs
land IS 2 dumping ground or flowing place
for tlilines from the attendants mine, until
the came has been duly condemned for that
purpose and
CONVERSATION MADE To THE OWNER THEREOF
In Secli "a Of the Act admitting this
STATE into ;he ii BIO. /. Is declared thst all the
nsyigGhle vGtera Ia the State Chall be COM
mon highways. Il those word5 mean any
thing, thu t5ate is thereby restrained from
ObstTucting or 81, horizjng the obstructing of
the Navigation c the Feather CT the Sacra-
mento rivers, which shall prevent their being
used as common Bjshways according TO their
capacity aud condition when the State was
admitted. Getting Hatch vs.. The lion Bridge
Company, Sawyer, S07
TIRE DEFENDANTS HAVE NO PRHsG8IPTIyE
FIGHT
To DO the acts complained Of, as there IS no
such continuity of occupation for Usicg all
these places, and the many persons who may
have preceded them in the occupation or
~ TX f the mines n this region, IL { g
commission Of similar wrongful acts to;the
injury Of the plaintiff or his co-sufferers, SO
as to entitle them tdefesdants) to obtain the
benefits of such aSss and to demand them in
support OF their plea c. prescription. This
question, however, is not q material one. as
the defendants appear to have been using the
rivers and adjacent lanGs .or the flowing and
depositing Of their tai.ings for FIVE years be-
fore tie commencement of this suit. IL is
ruhlic ruisaucp and no .Cne can sronire a