Sacramento daily record-union., 1889-06-06
HYDRAULICKING.
PERSONS MAY SELL WATER FOR
THAT PURPOSE.
So Says the Supreme Court-A Dis
senting Opinion Filed by Chief
Justice Beatty.

The Supreme Court has decided, in the
case of the county of Yuba VS.. Thomas
Cloke, that it is not unlawful for per-
son owning or controlling water
privilege to sell water to other per-
sons for use in operating hydraulic
mines. In the case referred to the plaintiff
sought to restrain defendant from selling
water to be used in hydraulic mining, and
obtained temporary injunction. Defend
ant attempted to have the injunction dis
solved, his motion was refused, and he ap-
pealed to the Supreme Court. The opinion
of the latter was written by Justice Works,
and Justices Mcfarland, Thornton, Patter.
son and Sharpstein concur, Chief Justice
Beatty dissenting. The position of the
Court land of the dissenting Chief Justice)
could be very briefly stated, but as the de-
cision affects large district the following
full extracts are given for the benefit of the
many persons interested in the matter at
issue. After quoting the complaint in che
case, the Court proceeds:
The prayer of the complaint is, in SUBJ
stance, that the defendant be enjoined and
restrained from furnishing or selling to
persons, companies, or corporations, or to
any or either of them, water to be used by
the hydraulic mining process, or by any
hydraulic mining process by which there
may be dumped or washed into Bear river,
or any of its forks or tributaries, any tail
ings, cobbles, gravel, etc.
The defendant answered, admitting his
representative capacity and the ownership
and control of the water, but denying, so
far as his knowledge extended, that the
water was used for hydraulic mining, or
for any other unlawful purposes.
The Court holds that it is not averred in
the complaint, in direct terms, and it can
not be inferred from any of the facts stated
that defendant sold the water with a
knowledge that it was to be used in such
manner as to work injury to the property
of plaintiff. The complaint presents the
sole question whether party can be en-
joined from selling water to a person en-
gagged in the business of hydraulic mining
without reference to the question whether
such mining is to be carried on in such way
as to work injury to others or not. Itseems
to US it must be conceded that the business
OF hydraulic mining is not within itself
unlawful or necessarily injurious to Others.
The unlawful nature of the business re-
suits II ON the manner in which it is car
rIed on, and the neglect of parties engaged
ther, IN to properly care for the debris re-
sulting therefrom whereby it is allowed to
follow the stream, and eventually cause in
jury to property situated below. If this be
true, giving full effect to all of the alIega-
tions of the complaint, it does not show
tlat the appellant was engaged in an un-
lawful business, or one injurious to the
public or the respondent. The sale of the
water is lawful and cannot be enioined
The business of hydraulic mining, properly
conducted, is lawful, and, therefore, the
sale OF water for that purpose cannot be
eniOined. 1t would be a remarkable doc
trine, 1t seems to US, that a party furnish
ing material to another, to be used in con-
ducting lawful business, could be held
for damages, if said business be improperly
conducted, or be enioined on the ground
that such business will be so conducted as
to work injury to others.
Counsel Ior respondent rely upon Wood
ruff VS.. North Bloomfield Mining Company
g Sawyer, AID. We do not question the
correctness of the case cited, but it does
not meet the point presented here. There
the defendant was himself engaged in the
business of hydraulic mining and in sup
plying the water therefor, for himself and
others, and it appeared that the business of
said parties, including the defendant, was
being conducted in such a way as to
amount to public and private nuisance
The marked difference between that case
and the one before us is that the defend
ant was shown to be directly connected
with the wrongful and injurious act COM
planned of. Here he was not. If the par
ties to whom the water was sold have
brought themselves within the rule, as laid
down by the learned Judge in the case of
Woodruff vs.. North Bloomfield Mining
Company the remedy of respondent is
against them, and not against the appel
liant. We see no good reason for holding
that an injured party may pass by those
who work the injury complained of, and
attack one who has, in a lawful wav, sold
them a part of the material to carry on
their work, and that, too, when the bust
ness for which the material is sold is in
itself lawful
Numerous cases are cited to the effect
that one who demises his property for the
purpose of having it used in such a way
as to prove offensive to others, may him
self be treated as the author of the mis-
chief, but these cases bear no analogy to
the one at bar. This is not a case of per.
mitting ones property to be used for an
improper purpose, injurious to others. but
of sale OF property which is put to en- i'm
proper use alter II passes from the sellers
control.
For the reasons stated the complaint did
not state cause of action. and the order
refusing to dissolve the injunction was er-
roneous for that reason. The
order appealed from is reversed.
THE DISSENTING OPINION.
Chief Justice Beatty in dissenting from
the opinion says: The opinion and iudg-
ment of the Court are based upon the pro-
positions that the business of hydraulic
mining, properly conducted, is lawful I:
that the business Of hydraulic mining is not
within itself unlawful or injurious to
others; that the unlawful nature of the
business results from the manner in which
it is carried on, and the neglect of parties
engaged therein to properly care tor the
debris resulting the-efrom, whereby it is
allowed to follow the stream and eventu-
ally cause injury to property situated
below" etc. 1t may be that there is law
full and harmless method of mining by the
hydraulic process, one in which the miners
do properly care for the debris resulting
therefrom, so as TO prevent it following the
stream and damaging property below, but
nothing of the sort appears from or is con-
sistent with the allegations of the COM
plant in this case.
The plaintiff describes the hydraulic pro-
cess as one that is plainly, distinctly and
inevitably injurious and unlawful-one by
which immense quantities of debris are de-
posted in and carried down the natural
beds OF the streams, on or near the banks
of which it is conducted-one in which the
miners take no care of the debris but allow
it to be carried down the stream7 TO and
upon the lands below. The complaint does
not describe or suggest the possibility OF
any other process of hydraulic mining. 1t
charges tnat the miners along Bear river
are mining in the manner described and
that defendant is selling water to be used
ss aforesaid
1t does in my opinion clearly show that
the defendant is delivering water to the
miners TO be used for an unlawful purpose
injurious to the plaintiff, and with full
knowledge, understanding and intent that
ii shall be so used.
The order appealed from was proper and
should be affirmed.
pprTC NnTEc