Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-01-09
public nuisance. No one shall use his property 50
as to injure the property of another. Without this
rule the weak would be at the mercy Of the strong.
Concerning the claim of authoritative
use of the streams as channels for flow OF
tailings, Judge SAWYER substantially holds ::

use OF the streams as channels for flow OF
tailings, Judge Sawyer substantially holds ::
.. The Legislature has no authority to permit the
obstruction of navigabe streams. No statute could
give defendant authority 10 send debris down to the
obstruction Of navigabe waters private property.
The State authorizes mining as legitimate indus
try hut rights granted must be exercised with due
regard to the rights Of others, and so exercised as
not to injure the vested or other rights of others
Nor does Congress possess the authority to grant
the right to interfere With the vested rights
I OF another IL cannot authorize encourage the
injury of private property Congress has never at
tempted TO give license to do injury to private
property, nor has it by approprating money to pre-
serve the navigabity of rivers injured by hydraulic
mining legalized the Of the streams for the
rage of debris in their waters. Had it the power to
do so, there would be no limit to it, and it could
thorize the boting out OF the navigable rivers,
| which are common highways Of the people. Con-
gress can exercise control over navigable streams
in State further than to regulate commerce.
Judge Deadly, on this subject, holds to
the same effect:
Neither the United States nor the State authority
has authorized it, could they either of them
do so, as sovereigns or property The United
States cannot authorize the obstruction of navga
bic stream in order to facilitate improvements upon
| public lands.
Again, Circuit Judge Sawyer holds, re-
garding State authorization of the acts of
the miners
No statute has been cited to show that the State
has attempted to authorize the filling up of the
navigable streams, the destruction of the land of
propie ors who have vested rights. Lands OF ripa-
rian prOpretors cannot be taken without condenna-
| ton and payment as provided by statute The Act
OF the Legislature of California To Promote Drain
| age, passed in 1878 did not authorize the acts of
| defendant. None OF the Acts of the Legislature
relative to mining or mining debris inconsistent
with the statute reliting to nuisances, and none
Justify the QeUOst of mining debris
streams TO the injury of private lands
District Judge Deadly on the same point
rules to this effect:
The Supreme Court has declared that under the
statute providing for dumping grounds fo- mines, to
be obtained by the exercise Ct the right Of eminent
domain, as being for the public use, single person
cannot condemn private property How, then, can
| a taxing a number of persons for such purpose
be held to be the taking Of private property for a
public use? But in no case can plaintiffs land be
| taken dumping ground without condemnation
| rs provided by law, and compensation being made
But taking still different and broader
view of the matter, Judge Sawyer holds
4. As a constitutional question the acts OF defend.
ant are unauthorized and indefensible for citizen
shall be deprived Of life property without due
process OF law and this doctrine OF the Constitution
protects the proprietor Of valley land from depriva-
ton OF its use without compensation. But if it is
considered that the use Of these lands for mining
debris IS public use, still legislative authority can
not make it lawful without compensation be
first paid the owner The Constitution of 1879 was
apparently aimed directly 1t corporations of the
character OF the defendant, when it provided that
they must conduct their business not to inter
fere with the vested rights OF others.
Concerning the direct injury to naviga.
bic waters, and the right of the people to
have their heritage in the common high.
way preserved, Judge Sawyer says:
o. The navgable waters Of the State are not State
property, but part Of the public domain, and held
in trust for a-cOmmon highways, and forever free
to the people Of the United States. If INSTRUCTED
by such acts those Of the defendant they cannot
be free.
On the same question Judge Deadly is
equally explicit aud clear
The Act admitting the State to the Union guaran-
tees the naygab.e waters 10 the people IS common
highways and this guarantee restraints the State
from Obstrlctug their navigation their use Us
common highways.
Regarding the much debated and no little
feared question OF prescription, Judge Saw.
yer holds
6. No prescriptiye right has been gained bv de-
PENDANT, for public nuisance never becomes legal
and prescriPI n can never authorize the commission
OF public or private nuisances Of any character.
Judge Deadly, on this subject, is equally
as clear and positive
There is to the defendants no descriptive light
to do theaets complained Of because there is not the
necessary continuity OF occupation in using all the
places. But, il So there can be no prtscript
i've right to commit nuisance a. iinst the public.
| To gain presCrIptiye right TO easement upon
the land Of another, the owner must acquiesce IN
the use Tor five years Consent TO the use of the
lrers as flowing ground for debris 10 fl the bed
ten feet, might be sufficient an acquiescence but
1t Is not al acquescence to the addition Of ten or
twelve more feet Of filing. Each additional foot
makes material difference 20 the loss to plaintiff
! II would be illogical 10 infer acquiescence in the
greater because Of consent to the lesser wrong
Plaintiff, it cannot be said, has consented he has
| bOine rather until the burden became too great
and dangerous.
Regarding the cosnste subjects of the
statute Of limitations, easement gained,
custom, acquiescence and restrainment OF
debris by impoundiDg, Judge Sawyer holds
substantially:
Z The plaintiff is not barred in his action bv |
lapse Of time, for there is no bar 10 q public uui !
sanCe. If private citizen should lose his right 10
pursue at law or in equity, be compelled to take |
the burden aud expense OF litigation in a matter |
where the injury is to the public well as to him |
self great wrong would result.
There has been gained no easement over the pri- |
vate Lands, for to establish such it be adverse
uninterrupted and continuous There was no sc- |
for when the injury committed 1000 miners
were working IN the streams; the farmers were
scattered over a large area all were operating sep
aratelY IN either sect N and widely separated the
debris came down mingled into an undi,tngui
able mass IS 10 identity Of creation, so
that no specific part Of any injury
could be traced 10 any particular man, and |
hence it cannot be maintained that there WAS
acqnescence in this case, tor the inference II |
acquiesceuce il largely dependent upon circun.
stances. man may well delay bring ng suit OF this
ia = af iuahff 20.
cope with combined forces in opposition Hence
there is no point made as to acquescence in the
claim that plaintiff aided IN the litigation by other
anu-o"hersi or by counties OF the valley, for the
defendant Is also aided by the Miners Association
II IS, IN fact, a struggle between mining COUNTIES
and valley counties. One may delay because he
acquesCes IN the adverse claim or because Of inability
TO meet the opposing powers, and yet in no sense
recognizing the validity Of the adverse claim. There
Is no evidence Of assent or acquesceGCe on the part
of plaintiff because the miners have con.
the lands Of comp 4iuaat eighty miles below &C
veTeeiy 10 him, have the miners gained an easement
DIV prescription FOR he deposit Of debris taiiiugs
Jht lands When the miners constructed levees and |
dams 10 save the lands below from destruc ion by de
post Of debris they were moved by the conscious
ness that their acts constituted nuisance which the
Courts might compel them TO abandon. Because
the plaintiff and other farmers built leyees to pro-
tect their lands cannot be held TO be assent People
injured have right TO protect themselves by other
means than Legal proceedings by Improvements.
sion Of public nuisance
The impounding Of debris by dams is a doubtful
remedy. Experiments OF that character have failed
Even II more securely and better built in the future
there can be guarantee that they will resist fl.
ture pressure. 1t cannot be deci1ed in advance
that such works will be sufficiently strong to justify
the continuance Of the acts complained Of but il |
defendant can devise method Of operation to OBJ
viate the injury complained Of, the injunction will
be modified To permit resumption OF his hyd auiic
mining, and no the meantime the order for per
petual Injunction must be made.
Judge Deadly contents himself in his con.
clusion with saying that the statute of
limitations does not bar plaintiff for it is
not case involving the right of actual
possession or title to real property He e1-
presses little confidence in any efforts to |
continue hydraulic mining and at the same
time restrain the flow Of debris, without !
subjecting residents below the restraining |
works to constant peril At least he will |
not consent to the construction of such |
works and the prosecution Of the objec-
able mining during their construction. II
the miners can at their own cost impouud |
their debris so as to do no injury TO others, |
they are, he says, at liberty to do so.
TLera "a Tins rresented the mil of tho