Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-07-16
The AMERICAN RIVER CUT.
Those Who Lost Property by 1t Have No
Chance to Recover.

| Chance to Recover.
The Supreme Court has rendered deci-
sion in the case of Green d Trainor VS.. The
State of California, adversely to plaintiffs,
and thus destroying the last chance they
had to recover for damage done their prop
erty in consequence of the changing of the
outlet of the American river in 1862 by the
Sacramento Levee Commissioners. In con-
sequence of this change in the mouth of
the stream, not only Green d Trainor, but
several other owners of property in Yolo
county, above the town of Washington,
were very seriously injured financially,
and at different times and in different style
of action they have endeavored to get re-
compense. Finally an Act of the Legis-
lature was passed, authorizing them to sue
| the State, and their suit under it has also
come to naught. The decision referred to
| is as follows:
The action was brought under the Act
of March u, 1885, authorizing the plaintiffs
10 institute an action against the State of
California 3 for damages which
may be alleged to have been caused by the
destruction of their property by reason of
a canal which was cut by the order and di-
rection of the Levee Commissioners divert
ing the waters of the American river into
the Sacramento river under and by virtue
of the authority conferred upon them by
an Act of the Legislature of said State, en-
titled An Act concerning the construction
| and repair of levees in Sacramento county
and the mode of raising revenue therefor
approved April 8, 1862 stats. 1885, p.
1917
1.-The sole purpose of the Act is to per-
nit an action against the State, and to
regulate to some extent the proceedings in
such action. Respondent contends that
the Act of March II, 1885, is un constitu-
| tional aud void. But we do not find it
necessary to pass on the question of its
| constitutionality.
Assuming the Act to be valid, the de-
murTer, on the ground that the cause of
action arose more than the statutory
period of Limitation before this action was
| brought, should have been oyerruled. The
plaintiff had no capacity or right to sue
the State until the enactment of March,
1885.
ut is admitted that the Act of April,
| 1862, is a valid Act. 1t was so decided in
Green VS.. Swift "a Cal. $3.50. If not valid,
| for any reason, it would have constituted
no defense for the defendants in Green VS..
Swift. And if the damages sustained by
the work done by or under the direction of
the Leyee Commissioners arose from the
taxing OF private property within the
meaning of the constitutional provision
which prohibits such taking without COM
pensation) the Act of 1862 and the work
| done by the Levee Commissioners in ac-
cordance with the Act would have consti-
tuted no defense in Green vs. Swift But
in that case the Court held that the injuries
done to the plaintiffs therein plaintiffs
| herein) being a destruction of property of
! like character to that alleged in this COM
plant, was not a taking of property en-
! titling the plaintiffs 10 recover compensa-
| tfon; but that any such alleged injury was
dGmnuR dbSque injariG, and it was there
| held that the Act of 1862 furnishes a suf-
| fcient defense to the defendants-theL evee
Commissioners and contractors. 1t is there
| fore defense for the State.
IF the questions had not been deter
mined by the highest judicial tribunal ex-
| listing under the former Constitution land
the canal had been dug after the adoption
of the present Constitution we might hold,
| in view of the language of the present Con-
stitution, that injury such as tEat alleged
in the complaint was damage" to prop
erty for which the plaintiffs were entitled
to compensation. But the acts which
caused the alleged injuries were done while
the former Constitution was in force and
similar injury caused by the same act was
| held by the Supreme Court, created by that
Constitution, not to be taking within
the meaning of the clause thereof which
prohibited taking without compensation.
We have held heretofore that, under
such circumstances, we must consider q
question stare deciSiS.'