102 REPORT OF STATE BOARD OF FISH COMMISSIONERS. 



stitute a public nuisance, it affecting a considerable number of persons. 

 (See the case of People vs. Elh M. & L. Co., 107 Cal., p. 219.) 



That was an action to restrain the defendant from causing a public 

 nuisance by allowing waste, sawdust, etc., from its sawmill to pass into 

 the stream, which polluted its waters. The Court say: 



"The Court found that Elk River is not a navigable stream. It 

 is contended that it follows from that fact that fouling its waters can- 

 not constitute a public nuisance. But it is found that the waters of Elk 

 River, at and below defendant's dam, were, and have been, and now are 

 used by a considerable number of persons who resided along the banks 

 of said stream below the defendant's mill and dam. This constitutes 

 such a public use as would make a pollution of water by any unreason- 

 able use, a public nuisance." 



The Definition in the Code is not Exclusive of What Constitutes 



A Public Nuisance. 



Counsel assume that the Code has not defined the act complained of 

 in this action to be a public nuisance and because it has not done so, or 

 because the common law is silent upon the subject, that, therefore, it is 

 not a nuisance. 



We answer this in two ways: 



First — The acts alleged in the complaint come clearly within the defi- 

 nition of a public nuisance in Sections 3479 and 3480 of the Civil Code. 



Section 3479, C. C, says: "Anything which is injurious to health, or is 

 indecent or offensive to the senses, or an obstruction to the free use of 

 'property, * * * is a nuisance." 



Section 3480, C. C, says: "A public nuisance is one which affects at 

 the same time an -entire Community or neighborhood, or any consider- 

 able number of persons, although the extent of the annoyance or dam- 

 age inflicted upon individuals may be unequal." 



What could be more explicit or applicable to the case at bar than 

 this definition? The State, as has been shown, has a property interest 

 in the fisheries within its borders, and the owners of the soil a right of 

 property in the fish. 



Defendant, by placing certain poisonous and deleterious substances in 

 the Truckee River, is totally destroying the fish therein — the property of 

 the plaintiff. This is not only "an. obstruction to the free use of the 

 property, ^^ but is more— a destruction of the property itself. It cannot 

 be maintained that a total destruction of property is not an obstruction 

 to the free use of the property. As to what constitutes a considerable 

 number of persons, see case of People vs. Elk M. & L. Co., 107 Cal. 219. 



Second — That, even though the acts complained of do not come within 

 the definition of nuisance in the Code, yet the Code is not exclusive. 



