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Richardson's land, in such a place that it naturally would and did flow over and upon and injure R.'s land, K. is liable for the injury so done. It is no excuse that he may have sold the water to miners, by whom it was used before it reached R.'s land and did the injury. If the miners thus contributed to the injury, and are joint tort-feasors with K., this is no defense to a suit against him.” The same liability has been imposed upon the owners of water-works under like circumstances, and for similar injuries in other cases.
Another form of the injury, for which the courts have given the remedy of compensatory damages or of injunction, consists in such a use and discharge of the water that it naturally and necessarily flows down upon the lands of adjoining proprietors, charged with mud, sand, gravel, and other mining débris; which material, being thus carried and deposited upon such adjacent lands, injures or even destroys them for all beneficial uses.' In Nixon v. Bear River etc. Co., an injunction was granted restraining the defendant from allowing the water, mud, sediment, or sand collecting in its ditch or reservoir, from flowing down into the plaintiff's garden and ruining his crops. The court said: “The instructions refused by the court at the trial are founded upon the theory that in mineral districts of this state the rights of miners and persons owning ditches constructed for mining purposes are paramount to all other rights and interests of a different character, regardless of the time or mode of their acquisition, thus annihilating the doctrine of priority in all cases where the contest is between a miner or a ditch owner and one who claims the exercise of any other kind of right, or the ownership of any other kind of interest. To such a doctrine we are unable to subscribe, nor do we think it clothed with a plausibility sufficient to justify us in combating it.” In Levaroni v. Miller an injunction was granted under very similar circumstances, although the fact appeared or was found that the injury was not done by defendants maliciously or unnecessarily, but in the ordinary conduct of their business. In another type of the same injury the mud, sand, gravel, and other debris are discharged by the ordinary mode of use into a stream, and are carried down by the natural flow of the current and deposited upon the lands of proprietors adjoining the stream in its lower portions, perhaps many miles below the point of discharge.
* See Richardson v. Kier, 37 Cal. 263; Bear River etc. Co., 24 Id. 367; Levaroni Blaisulell v. Stephens, 14 Nev. 17; Hen- v. Miller, 34 Id. 231. shaw v. Clark, 14 Cal. 461; Grigsby v. 10 Robinson v. Black Diamond etc. Co., Clear Lake W. Co., 40 Id. 396.
50 Cal. 461; 57 Id. 412; Woodruff y. North * Logan v. Driscoll, 19 Cal. 623; Nixon v. Bloomfield etc. Co., 8 Saw. 628; S. C., 1
West Coast Rep. 183.
4. Amount of water which the appropriator is entitled to use; or, the extent of his appropriation.
The amount of water which an appropriator is entitled to use commonly designated as the extent of his appropriation—is a question of fact to be determined by a jury. The right of the prior appropriator in this respect is limited to the amount or extent of his actual appropriation, as against subsequent appropriators and claimants; and he can not, after their subsequent rights have attached, by changing the place or nature of his use, or by enlarging his works, or otherwise, extend his claim or increase the amount of water diverted or used, to the prejudice of such subsequent parties." The extent of the appropriation and amount of water thereby taken may be determined by the special purpose for which the appropriation was made; and in such a case the appropriator is entitled to so much water only as is necessary for that purpose; a change of the purpose which would increase the amount of water diverted would not be permitted as against subsequent claimants." Thus, in the case of Nevada W. Co. v. Powell, cited below, it was held that where the plaintiff had appropriated a portion of the water of a stream, and had made a dam and ditch amply sufficient for his purpose, and had thereby acquired the right to use such portion only of the water, and in such manner only, he can not encroach upon the rights of subsequent appropriators by extending his use beyond the first appropriation. By the plaintiff's erections and use for several years, other persons had a right to suppose that he had thereby defined and determined his own rights as to amount of water, and to act accordingly by appropriating the surplus to their own uses. On the other hand, if a prior appropriation has been made of a certain amount or quantity of the water, independently of any particular use or purpose, the appropriator may afterwards, as against subsequent claimants, change either the place or the nature of his use, provided such change does not increase the amount of water diverted and used."
J. N. P.
(TO BE CONTINUED.)
11 Nevada W. Co. v. Powell, 34 Cal. 109; Ortman v. Dixon, 13 Id. 33; Higgins v. Barker, 42 Id. 233; Davis v. Gale, 32 Id. 26; Lobdell v. Simpson, 2 Nev. 274; Barnes v. Sabron, 10 Id. 217; Atchison v. Peterson, 20 Wall. 514.
12 Nevada W. Co. v. Powell, 34 Cal. 109; McKinney v. Smith, 21 Id. 374; Barnes v. Sabron, 10 Nev. 217.
13 Davis v. Gale, 32 Cal. 26; Kidd y Laird, 15 Id. 161; Woolman v. Garringer, 1 Mont. 535.
CIRCUIT COURT, DISTRICT OF CALIFORNIA.
Decided March 3, 1884. INTERNAL NATIGABLE WATERS--POWER OF CONGRESS OVER.-Congress has power, under its authority to regulate commerce and establish post-roads, to control for those purposes the internal navigable waters of the various states. As soon as congress legislates in regard to any such navigable waters, its power becomes exclusive, and the states can not afterward authorize any material obstruction to their navigation; but till congress acts, the legislature of any state has the power to authorize the obstruction of any navigable waters within its borders, by the erection of bridges, dams, or other structures, for the convenience and advantage of commercial intercourse.
THE ACT OF CONGRESS ADMITTING CALIFORNIA INTO THE UNION, which provides that all the navigable waters within the state shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor, it would seem, should be regarded as a valid regulation by congress of the navigable waters of California, which would with. draw them from the operation of state legislation authorizing the construction of a bridge over a navigable stream, such as the American river, that would utterly destroy its navi. gability.
THE CASE OF ESCANABA Co. v. CHICAGO, 107 U. S. 679, COMMENTED ON, and the points supposed to distinguish it from that case pointed out.
DEMURRER to bill. The bill alleges that the American river is navigable in fact for steamboats and barges for thirty miles from its mouth to Folsom; that complainant is the owner of several thousand acres of land bordering for a long distance on the river below Folsom; that he raises on said lands several thousand tons of grain yearly; that he is the owner of a steamboat and other vessels, by which he could and would ship his grain down the river but for the obstruction interposed by the bridge in question; that there are large deposits of cobble-stones in the bed and on the borders of the river on his land, which have a large market value in San Francisco for paving and other purposes, which, but for the said obstructions, he could ship by his vessels and sell at a large profit, whereas the expense of sending them by rail and other means open to him is such that he is unable to dispose of them at all, or so as to make it profitable; that in pursuance of the authority of an act of the legislature of California, the defendant has erected a low bridge without any draw in it, or other means of passing the bridge, by means of which the navigation of the river by complainant's steam and other boats is wholly obstructed, to his damage many thousand dollars every year. He asks a decree, either compelling defendant to remove the bridge, or else place a suitable draw in it, so as to permit the passage of steamers and other vessels capable of navigating the river.
Scrivener & McKune, for the complainant.
By the Court, SAWYER, Circuit Judge. This case is clearly within the rule as laid down in the Wallamet Bridge Case, 7 Saw. 127. If that case can be sustained in the broad terms of the rule stated, then the demurrer in this case should be overruled. Since that decision was rendered the supreme court of the United States has decided the case of Escanaba Co. v. Chicago, 107 U. S. 679, which defendant insists overrules the principle announced in the Wallamet Bridge Case; that under the clause of the act admitting Oregon into the Union, the state has no power to authorize the construction of bridges over the navigable waters of the state which shall materially obstruct their navigation. It must be admitted, I think, that there is language in the opinion that favors that view; and I am by no means certain that the court did not intend to go as far as its broadest language indicates. It is sought to distinguish this case from the Chicago Bridge Case. If it can be distinguished, it must be on the following grounds: In the Blackbird Creek Case, arising in Delaware, the Schuylkill Bridge Case, in Pennsylvania, and all others since decided, following the decisions in those cases, it was held that congress, under its authority to regulate commerce and establish post-roads, had power to control, for those purposes, the internal navigable waters of the various states; that as soon as congress legislates in regard to any such navigable waters, its power becomes exclusive, and the states can not afterward authorize any material obstruction to their navigation; but till congress acts, the legislature of any state has the power to authorize the obstruction of any navigable waters within its borders, by the erection of bridges, dams, or other structures, for the convenience and advantage of commercial intercourse. It was held, with respect to the navigable waters of Delaware and Pennsylvania, that congress had never acted, and, consequently, the legislation of these states authorizing the obstructions complained of was valid.
The question, therefore, is, has congress acted with reference to the navigable waters of California, by legislating upon the subject, in such sense that its control has superseded the power of the state legislature and become exclusive? If so, then the case is distinguishable from any of the cases, other than the Wheeling Bridge Case, before decided by the supreme court. If congress has so acted, that legislation is found in the act admitting California into the Union, which act provides, “ that all the navigable waters within the state shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor:” 9 Stat. 452, 453. How can the American river be a “common highway," or how can it be “free” to "the citizens of the United States,” or “ the inhabitants of the state," with a low bridge across it, without a draw, and so constructed as to preclude all navigation by steamers or vessels ? To be a common highway, or to be free to all to use as such, involves a capacity to be practically used as a highway, and such capacity is wanting where there is an impassable barrier or obstruction. This provision is a law of congress, and it is valid, not as a compact between the United States and the state of California, but as a law of congress, passed by virtue of the constitutional power of congress to regulate commerce among the states and with foreign nations, and to establish post-roads: Pollard's Lessee v. Hagan, 3 How. 224, 225, 229, 230; Wheeling Bridge Case, 13 Id. 566; Mining Debris Case, 1 West Coast Rep. 212. What does this provision of the statute mean? Can there be any reason to suppose that congress intended anything else than to make or continue the navigable waters of the state, by virtue of its power to regulate commerce, practical free highways, and to take away the power of the state to destroy or wholly obstruct their navigability ? Had nothing been said upon the subject in the act of admission, but subsequently, after the admission of California into the Union “ on an equal footing with the original states in all respects whatever,"..congress had passed a separate, independent act, with no other provision in it, providing “ that all the navigable waters within the state of California shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor,” would anybody suppose that congress, by the passage of such an act, under the circumstances indicated, could have any other purpose than to take control of the navigable waters of the state for the purpose of preventing any interference with, or obstruction to their navigability, or “ so far as might be necessary to insure their free navigation"? Or would it be seriously doubted, that congress had acted upon the subject matter within the meaning of the terms of the decisions in the Blackbird Creek and Schuylkill Bridge cases mentioned ? If such would be the construction in an independent act passed subsequently to the admission of the state, it must be the construction of the same language as found in the act of admission. If such is not the purpose of this provision, it would be difficult, I think, to determine what the purpose is. Following the direct decision upon this point in the Wheeling Bridge Case, 13 How. 565, I had no difficulty in concurring with the district judge in the ruling that a similar provision in the act admitting Oregon into the Union constituted legislative action by congress upon the subject-matter, of such a character as to withdraw it from the jurisdiction of state legislation.
In the Chicago Bridge Case, supra, the court still recognizes the power of the national government to control the navigable waters of the several states. It says:
The power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States, which are navigable in fact, so far as it may be necessary to insure free navigation, where by themselves, or their connection with other waters, they form a continuous channel for commerce among the states or with foreign countries:" 107 U. S. 682. The question, then, is, whether the provision quoted from the act of admission is legislation by which congress takes control of the navigable waters of the state," so far as it may be necessary to insure their free navigation;" and whether there can be a “common highway,” or “ free navigation," where the passage of steamers or other vessels is absolutely obstructed by impassable barriers thrown across the channels of waters otherwise navigable, in fact. In the case of the state of Illinois, neither the act authorizing the inhabitants to form a state government, 3 Stat. 428, nor the resolution admitting the state into the Union, Id. 526, contains the provision, or any provision of a character similar to that found in the acts admitting California and Oregon into the Union. Both the act and the resolution relating to Illinois are silent upon the subject, and I am not aware that there is any subsequent legislation on the subject affecting the status of Illinois. In the Chicago Bridge Case, the supreme court seems to regard the provision of the ordinance of 1787 as inoperative after the admission of Illinois as a state. Says the court: “Whatever limitation upon its powers as a government, whilst in a territorial condition, whether from the ordinance of 1787, or the legislation of congress, it ceased to have any operative force, except as voluntarily adopted by her after she became a state of the Union. "On her admission she became entitled to and possessed all the rights and dominion and sovereignty which belonged to the original states. She was admitted, and could be admitted, only on the same footing with them. The language of the resolution admitting her is on an equal footing with the original states in all respects whatever:' 3 Stat. 536. "Equality of constitutional right and