]08 



REPORT OF STATE BOARD OF FISH COMMISSIONERS. 



To summarize upon this point, we state our former proposition that 

 this is a public nuisance, and in either event — 



First — If the State is the trustee of the fisheries within its borders, 

 and the defendant is committing an unlawful act in destroying the 

 same, the State, as such trustee, may maintain this action on complaint 

 of the Attorney-General; 



Second — If the riparian owners along this stream have a special 

 property in the fish while in the waters on their land, the unlawful act 

 of defendant is such an injury to their property rights as to constitute 

 a public nuisance, and the People is the proper party in an action to 

 abate the same. 



We believe that it will not cause defendant any great injury or incon- 

 venience to so arrange its mill and box factory as not to place the refuse, 

 etc., in the river. We will close by using the language of the Court 

 in the case of Tuehner vs. California Street Raihoay Co., 66 Cal. 174, in 

 which they say: "If the business be necessary or useful, it is always 

 presumable that there is a proper place and a proper manner for carry- 

 ing it on"; and we think in this case that no injustice will be done 

 by restraining defendant from its unlawful act; but, on the contrary, 

 if permitted to continue, great injustice and damage will be done to the 

 public. 



We respectfully submit that the judgment denying defendant's motion 

 to dissolve the injunction should be affirmed. 



San Francisco, May 15, 1896. 



W. F. FITZGERALD, 



Attorney-General, and 

 HENRY E. CARTER, 

 Deputy Attorney-General, 

 Attorneys for Respondent. 



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