76 



CALIFORNIA. 



them unproductive, raising the soil-water, which also 

 tends to unproductiveness, and producing malarial and 

 other diseases among the inhabitants of the valley. 

 It is substantially found that much of the tailings 

 come down the streams, filling up the rivers, and pro- 

 ducing most of the evils charged. Navigation has 

 been obstructed, much valuable land covered with 

 sand, and that the continuation of the practice will 

 probably be productive of still greater damage. 



The finding may be considered for the defendant, 

 however, upon the charge that the debris adds materi- 

 ally to the malarial influences, or has obstructed or 

 will obstruct the sewers of Sacramento, or have inju- 

 riously affected the sanitary condition of that city. 

 It is found that mining pollutes the water of the riv- 

 ers with mud, rendering them less suitable for domes- 

 tic purposes. And that numerous other persons en- 

 gaged in the same pursuit contribute debris to the 

 same streams, but for which contributions the rivers 

 would be able to maintain their channels without 

 serious obstruction, notwithstanding the detritus from 

 the mine of defendant. 



The judge adds: 



I have concluded to so find that when the heavier 

 debris is completely impounded mining may be re- 

 sumed, virtually refusing to hold that the plaintiff 

 may enjoin such operations as only corrupt the water 

 with mud and render it less suitable for domestic and 

 other uses. Perhaps I am somewhat moved to this 

 by the consideration that otherwise mining can never 

 be prosecuted at all. It will probably be impractica- 

 ble to impound the lighter portion of the sediment. 

 I confess I shrink from a consequence so far-reaching. 

 It seems to be a conceded fact that this is not mate- 

 rially injurious either to navigation or the riparian 

 lands. Counsel denied that there was any intention 

 to assail the prosecution of drift, seam, or quartz min- 

 ing. There was no material injury from that source. 

 The sediment from such mines is of the same charac- 

 ter as the material which can not be wholly impound- 

 ed. Perhaps this will not materially add to the per- 

 mitted evil. 



Among the facts found by Judge Temple are 

 the following: 



The Sacramento is navigable, and has been 

 continuously 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. That said river has been declared navi- 

 gable by law to the mouth of Middle Creek, 

 which is above the confluence of the American 

 and the Sacramento. That since 1862 the navi- 

 gation of said river has been seriously impaired 

 by deposits of mud and sand therein, which 

 have in part come from hydraulic mines ; so that 

 now the city of Sacramento can be reached 

 by boats of deep draught during the high stages 

 of the water only, instead of at all times as 

 formerly. 



That hydraulic mining, as that term is gen- 

 erally understood, consists in washing and re- 

 moving from their natural positions into the 

 water-courses and rivers, by means of water, 

 high banks of earth and gravel containing gold, 

 and thereby separating the gold from the earth, 

 sending the residue, consisting of bowlders, 

 cobble-stones, gravel, sand, and clay, into the 

 water-courses, the larger portion of which finds 

 its way into^the principal confluents of the Sac- 

 ramento River, and is deposited along said 



streams from the place of discharge or dump 

 to San Pablo and San Francisco Bays, the 

 heavier material being first deposited. 



That hydraulic mining has been practiced for 

 twenty years to some extent in the mountains 

 of the Sacramento Basin. It attained great 

 magnitude as an industry before 1875, and is 

 still extensively carried on, principally in the 

 counties of Butte, Yuba, Sierra, Nevada, and 

 Placer. 



That the debris from mines, including the 

 mine of the defendant, has materially contrib- 

 uted to such filling of the river-channel, and 

 thereby has interfered with and obstructed the 

 free and comfortable use and enjoyment of 

 large portions of the land upon the American 

 and Sacramento Rivers. 



That the beds of said rivers have already 

 become so widened and filled that the depth 

 of the water therein has been greatly lessened ; 

 that said water, at all times, is heavily laden 

 with earthy matters, chiefly from mines ; there- 

 fore, said rivers are likely to fill more rapidly 

 in the future in proportion to the quantity of 

 hydraulic tailings than in the past. 



That thousands of acres of good land in the 

 Sacramento Valley have already been covered 

 by such debris, and if some preventive is not 

 applied, much further and greater injury is 

 likely to ensue in the future, and large tracts 

 of land will probably be rendered within a 

 few years unfit for cultivation and inhabit- 

 ancy. 



That if the said acts of the defendant and 

 others, mining as aforesaid, are allowed to 

 continue, there is imminent danger 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 de- 

 posits that said rivers will be turned from their 

 channels, cutting new water-ways, injuring or 

 destroying immense tracts of land, and prob- 

 ably will result in greatly impairing the navi- 

 gability of the Sacramento River. 



That the acts threatened to be performed by 

 the defendant in continuing to prosecute its 

 mining industry in the manner set out in these 

 findings, as it will do unless restrained, if al- 

 lowed to be done, will, in connection with like 

 acts by others, obstruct the navigation of the 

 Sacramento River, and fill up, to some extent, 

 Suisun Bay, destroy or injure large amounts of 

 land, and constitute an obstruction to the free 

 use and enjoyment of the property of a large 

 number of citizens of this State. 



From these facts the judge drew the follow- 

 ing legal conclusions : 



1. That the plaintiffs cause of action and its right 

 to the relief in this action demanded, is not barred oy 

 all or either of the statutes of limitation pleaded by 

 the defendant in this case or otherwise. 



2. That defendant has not acquired any right to 

 the use of the bed of the American River, or of the 

 Sacramento River, as places of deposit for its mining 

 tailings, nor to choke or fill with such tailings the 

 channels of said rivers in the valleys thereof, nor to 



