No. 8,996.

PEOPLE v. GOLD RUN DITCH AND MINING COMPANY.

In Bank. Filed November 25, 1884.

HYDRAULIC MINING-PUBLIC NUISANCE TO NAVIGABLE STREAM-RIGHT OF PUBLIC TO EN JOIN. The record of the case shows that the Gold Run Ditch and Mining Company has been since August, 1870, a corporation existing under the laws of the state of California, for the purpose of mining by the hydraulic process, and selling water to miners and others; and that it is now, and its predecessors have been for several years last past, in possession of five hundred acres of mineral land, situated adjacent to the North Fork of the American river, and of certain mines on said land, which it works by the hydraulic process. The natural surface of this land lies about one thousand feet above the river; and all the material of the mines upon the land-consisting of about twenty millions cubic yards of material composed mostly of sand, gravel, small stones, cobbles and bowlders, mixed with small particles of gold.-is capable of being worked off into the river. For the purpose of mining this tract of land by the hydraulic process the company has conducted to its mines, by means of ditches and iron pipes, a large quantity of water, which it uses and will continue to use, under a vertical pressure of several hundred feet, discharging water through 'little giants' and 'monitors,' and dumping all the tailings from its mines into the river. In that manner it has been carrying on its mining operations upon said land for about eight years last past; and up to the time of commencing this action, and during about five months of each year of said period has been daily discharging into the said river between four and five thousand cubic yards of solid material from its said mine, to wit., of bowlders, cobbles, gravel and sand, making a yearly discharge of at least six hundred thousand cubic yards, and will continue to discharge that quantity annually if the working of said mine be permitted to continue, and at such rate it will require some thirty years to mine out and exhaust said mineral land. Of the material thus discharged into the river a large portion has been washed, from the place of discharge or dump, down the river, and, commingled with tailings from other hydraulic mines, and still other material which is the product of natural erosion, has been deposited in the beds and channels of the American and Sacramento rivers and their confluents, but mostly in the American, and upon lands adjacent to both rivers. The deposits of this material upon the beds and along the channels of the rivers, and through the Suisun bay and into the San Pablo and San Francisco bays, have already filled and raised the beds of both rivers. The bed of the American has been raised from ten to twelve feet and in some places more, and the bed of the Sacramento, to a great extent below the mouth of the American, from six to twelve feet. In consequence, the beds of the two rivers have shallowed and their channels widened so that the depths of the rivers have greatly lessened and their liability to overflow has been materially increased, causing the frequent floods to extend their area and to be more destructive than they otherwise would have been, and covering thousands of acres of good land in the Sacramento valley with mining debris. And as the rivers are at all times carrying in suspension the lighter earthy matter from the mines, and washing down the heavier debris, they are likely to fill more rapidly in the future in proportion to the quantity of hydraulic tailings than in the past, and to cause much further and greater injury in the future to large tracts of landprobably rendering them, within a few years, unfit for cultivation and inhabitancy. Besides, the discharge from the mines so fouls the water of the American river at all points below as to make it unfit for any domestic use by the inhabitants. And from the same cause the navigation of the Sacramento river has been so greatly impaired that the river, which, until the year 1862, was navigated as far as the city of Sacramento without difficulty by steamers of deep draught, to wit., by boats drawing nine or ten feet of water, has been, since the year 1862, unnavigable as far as the city of Sacramento by boats of deep draught, except during high water, instead of at all times as formerly. And there is imminent danger, if the acts of the defendant and others engaged in hydraulic mining are allowed to continue, that the beds and channels of the lower portion of the American river, and of the Sacramento river below the mouth of the American, will be so filled and choked up by tailings and other depos ts, that said rivers will be turned from their channels, cutting new waterways, injuring or destroying immense tracts of land and probably will result in greatly impairing the navigation of the Sacramento river. Held, that such acts of the defendant constituted a public nuisance, which might be enjoinet in an action in the name of the people of the state, although other mining companies, acting separately and independently of each other, contributed in producing such nuisance.

COURTS WILL TAKE JUDICIAL NOTICE OF THE NAVIGABILITY OF THE SACRAMENTO RIVER. THE SAME NUISANCE UPON NAVIGABLE STREAM.-Navigable streams are public highways, in which the people of the state have controlling and paramount rights, and all unauthorized intrusions upon the same for purposes unconnected with the rights of navigation or passage are nuisances.

THE SAME JOINDER OF PARTIES CONTRIBUTING TO NUISANCE.-In an action to abate a public or private nuisance, all persons engaged in the commission of the wrongful acts which constitute the nuisance, may be enjoined jointly or severally.

PUBLIC NUISANCE-RIGHT TO CONTINUE CANNOT BE ACQUIRED BY CUSTOM.-The right of private individuals or corporations to make use of the waters of navigable streams as a place of deposit for their mining debris, so as to destroy the navigability of such streams cannot be acquired by custom.

THE SAME CANNOT BE ACQUIRED BY PRESCRIPTION. -The right to continue a public nuisance cannot be acquired by prescription. Against such nuisance, however long continued, the state is bound to protect the people; and for that purpose the attorney-general has the power to institute a proceeding in equity in the name of the people to compel the discontinuance of the acts which constitute the nuisance.

APPEAL from a judgment of the superior court for Sacramento county, entered in favor of the plaintiff and from an order denying the defendant a new trial. The opinion states the facts.

J. K. Byrne, W. C. Belcher, S. M. Wilson, W. T. Wallace and Stewart & Herrin, for the appellant.

A. L. Hart, Attorney General, George Cadwalader, A. L. Rhodes, I. S. Belcher and Richard Bayne, for the respondent.

MCKEE, J. This appeal is from an order denying a motion for a new trial, and from a judgment, which perpetualiy restrains the commission and compels the discontinuance of certain acts as wrongful and injurious to public rights.

The record of the case shows that "The Gold Run Ditch and Mining Company has been, since August, 1870, a corporation existing under the laws of the state of California, for the purpose of mining by the hydraulic process, and selling water to miners and others; and that it is now, and its predecessors have been for several years last past, in possession of five hundred acres of mineral land, situated adjacent to the North Fork of the American river, and of certain miues on said land, which it works by the hydraulic process. The natural surface of this land lies about one thousand feet above the river; and all the material of the mines upon the land-consisting of about twenty millions cubic yards of material, composed mostly of sand, gravel, small stones, cobbles and bowlders, mixed with small particles of gold, is capable of being worked off into the river. For the purpose of mining this tract of land by the hydraulic process, the company has conducted to its mines, by means of ditches and iron pipes, a large quantity of water, which it uses and will continue to use, under a vertical pressure of several hundred feet, discharging water through 'little giants' and 'monitors,' and dumping all the tailings from its mines into the river. In that manner it has been carrying on its mining operations upon said land for about eight years last past; and up to the time of commencing this action, and during about five months of each year of said period has been daily discharging into the said river between four and five thousand cubic yards of solid material from its said mine, to wit., of bowlders, cobbles, gravel and sand, making a yearly discharge of at least six hundred thousand cubic yards, and will continue to discharge that quantity annually if the working of said mine be permitted to continue, and at such rate it will require some thirty years to mine out and exhaust said mineral land."

Of the material thus discharged into the river a large portion has been washed, from the place of discharge or dump, down the river, and, "commingled with tailings from other hydraulic mines, and still other material which is the product of natural erosion, has been deposited in the beds and channels of the American and Sacramento rivers and their confluents, but mostly in the American, and upon lands adjacent to both rivers." The deposits of this material upon the beds and along the channels of the rivers, and through the Suisun bay and into the San Pablo and San Francisco bays, have already filled and raised the beds of both rivers. The bed of the American has been raised from ten to twelve feet and in some places more, and the bed of the Sacramento, to a great extent below the mouth of the American, from six to twelve feet. In consequence, the beds of the two rivers have shallowed and their channels widened so that the depths of the rivers have greatly lessened and their liability to overflow has been materially increased, causing the frequent floods to extend their area and to be more destructive than they otherwise would have been, and covering thousands of acres of good land in the Sacramento valley with mining debris. And as the rivers are at all times carrying in suspension the lighter earthy matter from the mines, and washing down the heavier debris, they are likely to fill more rapidly in the future in proportion to the quantity of hydraulic tailings than in the past, and to cause much further and greater injury in the future to large tracts of land-probably rendering them, within a few years, unfit for cultivation and inhabitancy. Besides, the discharge from the mines so fouls the water of the American river at all points below as to make it unfit for any domestic use by the inhabitants. And from the same cause the navigation of the Sacramento river has been so greatly impaired that the river, which, until the year 1862, was navigated as far as the city of Sacramento without difficulty by steamers of deep draught, to wit., by boats drawing nine or ten feet of water, has been, since the year of 1862, unnavigable as far as the city of Sacramento by boats of deep draught, except during high water, instead of at all times as formerly. And there is imminent danger, if the acts of the defendant and others engaged in hydraulic mining are allowed to continue, that the beds and channels of the lower portion of the American river, and of the Sacramento river below the mouth of the American, will be so filled and choked up by tailings and other deposits, that said rivers will be turned from their channels, cutting new waterways, injuring or destroying immense tracts of land, and probably will result in greatly impairing the navigability of the Sacramento river."

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Vast as may be the interests bound up in the litigation, yet the questions for the consideration of this court, arising out of the facts as found by the court below, lie within a comparatively narrow compass. All of them flow into one as the main question at issue, and that is, whether the defendant as owner of its hydraulic mines situate on the banks of the American river-an unnavigable stream

which empties its waters into the Sacramento river, the principal navigable river within the state-has the right to dump its hydraulic debris into the river to the endangerment of habitation and cultivation of large tracts of country, upon which are cities, towns and villages, and to the impairment of the navigation of the Sacramento river; and if there exists no such right in the defendant do the acts. committed by it and which it threatens to continue to commit, involving such consequences, constitute a public nuisance which may be enjoined in an action in the name of the people of the state?

Courts take judicial notice of the navigability of the Sacramento river. In addition to which, the court below has found that the river has been declared by law navigable to the mouth of Middle creek, which is above the confluence of the American and Sacramento rivers; "and has been continually navigated by steamers, barges, schooners and smaller craft; and, up to 1862, was navigated as far as the city of Sacramento, without difficulty, by steamers of deep draught, to-wit: by boats drawing nine or ten feet of water." Navigability, in law and in fact, has therefore been established. As a navigable river the Sacramento is a great public highway, in which the people of the state have paramount and controlling rights. These rights consist chiefly of a right of property in the soil and a right to the use of the water flowing over it, for the purposes of transportation and commercial intercourse. The soil of a navigable river is the alveus or bed of the river; the river itself is the water flowing in its channel. An unauthorized invasion of the rights of the public to navigate the water flowing over the soil is a public nuisance; and an unauthorized encroachment upon the soil itself is known in law as a purpresture. Purpresture is also a particular kind of nuisance. The word is derived from the French word pourpris, which signifies an inclosure: "That is," says Coke, "when one encroacheth and makes that serviceable to himself which belongs to many. And because it is properly, when there is an inclosure made of any part of the King's demesne, or of a highway, or a common street, or public water, or such like things:" 2 Coke's Insts., 271.

Great water highways belong to the same class of public rights and are governed by the same general rules applicable to highways upon land. Any contracting or narrowing of a public highway on land is a nuisance: Russell on Crimes, 349; and all unauthorized intrusions upon a water highway for purposes unconnected with the rights of navigation or passage are nuisances: Comm. v. Caldwell, I Dall., 150; Comm. v. King, 13 Met., 115; sections 3,479, 3,480, C. C. To make use of the banks of a river for dumping places, from which to cast into the river annually, six hundred thousand cubic yards of mining debris, consisting of bowlders, sand, earth and waste materials, to be carried by the velocity of the stream down its course and into and along a navigable river, is an encroachment upon the soil of the latter, and an unauthorized invasion of the rights of the public to its navigation; and when such acts not only impair the navigation of a river, but at the same time affect the rights of an entire com

munity, or neighborhood, or any considerable number of persons, to the free use and enjoyment of their property, they constitute, however long continued, a public nuisance.

In Veazie v. Dwinell, 50 Maine, 479, certain mill occupants on the Penobscot river were accustomed to throw slabs, edgings and other waste materials from their mills into the river to float or sink and obstruct navigation. The supreme court compelled the discontinuance of the practice. "Highways," said the court, "whether on land or water, are designed for the accommodation of the public for travel or transportation; * * ** they cannot be made the receptacles of waste materials, filth or trash, nor the depositories of even valuable property, so as to obstruct their use as public highways. * * * If, therefore, any person obstruct a stream which is by law a public highway, by casting therein waste material, or filth or trash, or by depositing material of any description, except as connected with the reasonable use of such stream as a highway, or by direct authority of law, he does it at his peril-it is a public nuiAnd in Garrish v. Brown, 51 Maine, 262, the court reiterates the same doctrine: "A person who casts at random filth, or trash, or waste materials into a public river to float or sink as it may, without guidance or direction, can in no sense be said to be in the use of such river for lawful purposes."

But it is contended that as the nuisance complained of and found by the court, was the result of the aggregate of mining debris dumped into the stream by the defendant and other mining companies, acting separately and independently of each other, the acts of the defendant cannot be joined with the acts of other mining companies to create a cause of action against the defendant. The contention is made upon a finding by the court as follows:

"On the American river and its tributaries a vast amount of mining was done in early times, and up to this time a great deal is being done, besides that by the defendant. No other mine contributes annually more detritus to the river than the defendant, still I am unable to say that defendant's mine alone, without reference to the debris from other mines, materially contributes to the evils mentioned; or, in other words, if there were no mining operations save those of the defendant, I am not prepared to say that it would materially injure the valley lands or the navigation of the river. aggregate of debris from all the mines which produces the injuries. mentioned in these findings."

And it is attempted to sustain the contention by the cases of Chapman v. Palmer, 77 N. Y., 51; Schuylkill Navigation Company v. Richards, 57 Penn., 142; Sellick v. Hale, 47 Conn., 260, and Keyes v. Little York, 53 Cal., 724.

The first three of those cases were actions on the case for damages; the first, for polluting the water of a stream by the discharge of sewage therein; the second, for the filling up of the basin of a dam and water-power with coal-dirt and waste material cast into a stream by separate collieries working their mines on the stream in