104 REPORT OF STATE BOARD OF FISH COMMISSIONERS. 



A fishing privilege is a valuable consideration in addition to other 

 riparian rights, and we ask what authority defendant has to so use its 

 property that it may destroy the valuable rights and privileges of other 

 persons? It could not do so with reference to any other species of prop- 

 erty, and we know of no reason why it should be permitted to do so in 

 this case. 



It is a well-established principle of law that an owner of property 

 must not use it, even in a lawful business, in such a manner as to inter- 

 fere with another in the legitimate use of its property. ( Tuebner vs. 

 California Street Railway Co., 66 Cal. 171.) 



Suppose defendant, instead of placing the sawdust and refuse in the 

 river and destroying the fish, had placed the same upon the land of other 

 persons, we think it would not be seriously contended by counsel that 

 such would not be a nuisance. The principle involved is no different in 

 placing the same in a stream of pure water and killing the fish therein. 

 In the instance cited, a nuisance is created, because it is a damage to 

 property (his land), and obstructs the use of the same. In the case at 

 bar, it is a nuisance because it is a damage to property rights (fishery). 



Kemedy— Injunction Will Lie. 



Counsel contend that, because the Penal Code has made the acts 

 complained of a misdemeanor, a suit in a court of equity will not lie. 

 This contention is not well founded. 



The mere fact that the statute makes a certain act a penal ofiense does 

 not necessarily remove the case from the jurisdiction of a court of equity. 

 The question to be determined is one of fact. 



If the acts complained of constitute a nuisance in fact, equity will 

 interpose to abate the further continuance of the same. 



Section 3491 of the Civil Code provides: *' That the remedies against a 

 public nuisance are: (1) Indictment or information; (2) A civil action; 

 (3) Abatement." 



The courts of this State have decided the question several times. (See 

 Yolo Co. vs. City of Sacramento, 36 Cal. 193; People vs. Davidson, 30 Cal. 

 380; People vs. Gold Run D. & M. Co., 66 Cal. 150; Vol. 16 Am. & Eng. 

 En. of Law, p. 940, and authorities there cited; Story on Equity 

 Jurisprudence, Sections 921-3-4.) 



In the case of People vs. Gold Run D. & M. Co., supra, the Court hold: 

 " Whenever an indictable nuisance exists there is a coordinate remedy 

 in equity to abate it by injunction." 



In the case of Yolo County vs. City of Sacramento, supra, the Court 

 say: "If the dam is an obstruction to navigation, it is so far a public 

 nuisance, for which the plaintiff cannot have a private action. In such 

 cases the remedy is by indictment against the parties by whom the dam 



