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dependently of each other; and the third, for the overflow of a brook obstructed by the defendant and other persons who were not parties to the action. Each of those cases was decided upon the principle that where several persons, acting independently of each other, engage in the commission of wrongful acts, the torts are distinct and not joint; and each is only severally liable for the injury caused by his own acts, and not for the torts of others with whom he was not acting in concert. There can be no doubt of the correctness of that principle, and of its applicability to an action at law for the recovery of damages for the violation of a private right. But in the case of Keyes v. Little York, the late supreme court of this state applied the principle to an action in equity by which the plaintiff sought to enjoin a number of persons, who, without privity or concert of action, contributed to the washing down from their mining claims, mining debris into a stream which carried it down and spread it over the plaintiff's land, rendering it valueless. To the complaint in the action, the court sustained a demurrer upon the ground of misjoinder, because all, who contributed to the injury complained of, could not be joined as defendants, without an averment that they acted in concert in the commission of the wrongful acts charged against them.

That case, however, was practically overruled by this court in Hillman v. Newington, 57 Cal., 62. That also was a case in which the plaintiff sued a number of persons to recover damages for the wrongful diversion of the water of a stream, and to perpetually enjoin them from diverting the same. The defendants answered, as in Keyes v. Little York, that they were improperly joined in the action, because they acted severally and not jointly. But this court said: "Each of the defendants diverts some of the water, and the aggregate reduces the volume below the amount to which the plaintiff is entitled, although the amount diverted by any one would not. * All who act must therefore be held to act jointly," and the damages and costs may be apportioned by the court sitting as a court of equity. This case clearly recognizes the equitable principle that in an action to abate a public or private nuisance, all persons engaged in the commission of the wrongful acts which constitute the nuisance, may be enjoined jointly or severally. It is the nuisance itself which, if destructive of public or private rights of property, may be enjoined.

*

The King v. Trafford, 1 Barn. and A., 874, was a criminal action for a public nuisance to a public canal navigation established by act of parliament. The jury found that the acts creating the nuisance were done by the defendants separately; but it was held, nevertheless, that as the nuisance was the result of all those acts jointly, the defendants were rightly joined in one indictment, which stated the

acts to be several.

Whenever an indictable nuisance exists there is a co-ordinate remedy in equity to abate it by injunction. In an equitable action for that purpose, there is generally raised no question of damages.

*

Until the adoption of the codes, such a question could not be raised in an action in equity for the abatement of a nuisance. The only question was, whether the nuisance compained of and sought to be redressed had been committed; and it was no answer, in such an action, where there was no question as to a separate or joint liability for damages in the case, to say that other persons were committing the same sort of nuisance: Crossley & Sons v. Lightowler, 8 L. R. Eq. Cas., 729; Chipman v. Palmer, 77 N. Y., 51. So in Woodyear v. Schaeffer, 57 Md., 9, it is said: "It is no answer to a complaint of nuisance, that a great many others are committing similar acts of nuisance. Each and every one is liable to a separate action, and to be restrained. * * The extent to which the appellee has contributed to the nuisance may be slight and scarcely appreciable. Standing alone it might well be that it would only, very slightly, if at all, prove a source of annoyance. And so it might be as to each of the other numerous persons contributing to the nuisance. Each standing alone might amount to little or nothing. But it is when all are united together, and contribute to a common result, that they become important as factors, in producing the mischief complained of. And it may only be after from year to year, the number of contributors to the injury has greatly increased, that sufficient disturbance of rights has been caused to justify a com*** In that state of facts plaint. * each element of contributive injury is a part of the common whole, and to stop the mischief of the whole, each part in detail must be arrested and removed."

* *

But it is also claimed that the defendant has acquired the right from custom, and by prescription, and the statute of limitations, to use the American and Sacramento rivers as outlets for its mining debris; and that in the exercise of this right it cannot be restrained in its business of hydraulic mining, notwithstanding the consequent injuries to those rivers.

Undoubtedly, the fact must be recognized that in the mining regions of the state, the custom of making use of the waters of streams, as outlets for mining debris, has prevailed for many years; and, as a custom, it may be conceded to have been founded in necessity, for without it hydraulic mining could not have been economically operated. In that custom the people of the state have silently acquiesced, and upon the strength of it, mining operations, involving the investment and expenditure of large capital, ha ve grown into a legitimate business, entitled, equally with all other business pursuits in the state, to the protection of the law. But a legitimate private business, founded upon a local custom, may grow into a force to threaten the safety of the people and destruction to public and private rights; and when it develops into that condition, the custom upon which it is founded becomes unreasonable, because dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those

engaged in it to so conduct it as that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is a corresponding duty to so use it that it shall not abuse the rights of other recognized owners: Sections 3,479, 3,514, C. C.; 731, C. C. P.

Upon that underlying principle, neither state nor federal legislatures could, by silent acquiescence, or by attempted legislation, take private property for a private use, nor divest the people of the state of their rights in the navigable waters of the state for the use of a private business, however extensive or long continued.

As we have already said, the rights of the people in the navigable rivers of the state are paramount and controlling. The state holds the absolute right to all navigable waters and the soils under them, subject, of course, to any rights in them which may have been surrendered to the general government: Martin v. Wade, 13 Peters, 410. The soil she holds as trustee of a public trust for the benefit of the people; and she may, by her legislature, grant it to an individual; but she cannot grant the rights of the people to the use of the navigable waters flowing over it; these are inalienable. Any grant of the soil, therefore, would be subject to the paramount rights of the people to the use of the highway. And such was the doctrine of the common law. "The jus privatum" says Lord Hale, in De Jure Maris, p. 22, "must not prejudice the jus publicum wherewith public rivers and arms of the sea are affected to public use. It is, therefore, beyond the power of legislatures to destroy or abridge such rights, or to authorize their impairment.

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As to the claim of right derived from prescription and the statute of limitations, it is sufficient to say that a right to continue a public nuisance cannot be acquired by prescription: Rettis v. Johnson, 56 Ind., 139; Boston Rolling Mills v. Cambridge, 117 Mass., 396; Wright & Rice v. Moore, 38 Ala., 593; People v. Cunningham & Harris, 1 Denio, 524; Mills v. Hall & Richards, 9 Wend, 315. Nor can it be legalized by lapse of time: Sec. 3,490, C. C. Against it, however long continued, the state is bound to protect the people; and for that purpose, the attorney-general, as the law officer of the state, has the power to institute a proceeding in equity, in the name of the people, to compel the discontinuance of the acts which constitute the nuisance: County of Sacramento v. The Central P. R. R. Co., X Pac. C. L. J., 27; 61 Cal., 250; People v. Stratton, 25 Id., 242: Yolo county v. Sacramento, 36 Id., 193. As was said in People v. Booth, 32 N. Y., 397.: "The remedy to prevent the erection of a purpresture and nuisance in a bay or navigable river, is by injunction at the suit of the people by their attorney-general. For all the people of the state are interested in the question, and have the right to use all bays and navigable rivers within the state; and I think the attorney-general may maintain an action in the name of the people of the state, to prevent the obstruction of a public highway, which all the people have a right to travel, because all of them have an interest in such highways."

There is no prejudicial error in the record. Judgment for a perpetual injunction and order affirmed.

MYRICK, J., and MORRISON, C. J., concurred.

MCKINSTRY, J., concurring. I concur in the conclusions reached by Mr. Justice McKee with reference to the questions by him considered and discussed. But in my opinion the case of Keyes v. Little York Company, 53 Cal., 724, has no direct bearing upon any question presented in the case now here. That was an action by an individual proprietor, his claim to an injunction being based upon alleged facts showing that he had suffered, by reason of a public nuisance, special injuries, differing in kind and degree from those sustained by other members of the public; either so, or an action to restrain a private nuisance. There many persons whose acts had been several, and not even concurrent, were made defendants. The complaint in the action now here is in the nature of an information by the attorney-general on behalf of the people of the state; and the Gold Run Ditch and Mining Company is the sole defendant.

Among other matters the court below found: "Said defendant has been mining its said tracts of land for about eight years last past in the mode and process aforesaid; and up to the time of commencing this action, and during about five months of each year of said period has been daily discharging into the said North Fork between four and five thousand cubic yards of solid material from its said mine, to wit: of bowlders, cobbles, gravel and sand, making a yearly discharge of at least six hundred thousand cubic yards, and will continue to discharge that quantity annually, if the working of said mine be permitted to continue, and at such rate it will require some thirty years to mine out and exhaust said mineral land.

"That a large portion of the material so dumped by the defendant into the North Fork of the American river has been washed down said river by the water and commingled with tailings from other hydraulic mines, and still other material, which is the product of natural erosion, has been deposited in the beds and channels of the Sacramento and American rivers, but mostly in the American river and upon the lands adjacent to said rivers, and that by said mining of the defendant and other mines the filling up, raising and shallowing of said rivers has been materially increased, to the impairment of the navigation of the Sacramento river, and to the excessive overflow of the lands adjacent to said rivers, to the great injury of said land, and damage, discomfort and annoyance of a great number of citizens of the state, owners of said land, and residents of said valley."

The court found that a public nuisance had been created when this action was commenced. And the court also found that defendant was adding to, and, unless restrained, would continue to add to the obstructions which constituted the nuisance, and thus to aid in increasing and perpetuating it. This made a proper case for an injunction.

Appellant attaches grave consequences to a further finding, which is supposed to qualify those which precede it.

"On the American river and its tributaries a vast amount of mining was done in early times, and up to this time a great deal is being done beside that by the defendant. No other mine contributes annually more detritus to the river than the defendant; still I am unable to say that defendant's mine alone without reference to the debris from other mines, materially contributes to the evils mentioned; or, in other words, if there were no mining operations save those of the defendant, I am not prepared to say that it would materially injure the valley lands or the navigation of the river. It is the aggregate of debris from all the mines which produces the injuries mentioned in these findings."

It is urged that while the complaint alleges the defendant has materially contributed and will materially contribute to the nuisance, the judge below has declared "he is unable to say" that defendant's mine alone materially contributes to the evil; which (it is claimed) is either a finding that defendant's mine does not materially contribute; or the court has failed to find on the material issue. But the meaning of the language which immediately procedes it, is rendered very clear by the clause in the finding last quoted: "Or, in other words, if there were no mining operations save those of the defendant, I am not prepared to say, that it would materially injure the valley lands, or the navigation of the river."

But the contributions of defendant may have been material-substantial, real, and appreciably capable of rendering more durable and more injurious an existing nuisance-although of themselves they would not in their aggregate have produced the mischief mentioned in the findings. There is no contradiction therefore between the finding last referred to and those which determine that a large portion of the material dumped by defendant into the North Fork has been washed down and deposited in the beds and channels of the Sacramento and American rivers, etc. None of the findings can be construed as deciding that the deposits made by defendant have contributed or will contribute to the shoaling of the waters in so slight a degree as not substantially to affect the building up or continuation of the obstructions to their flow, in the natural channels of the rivers.

THORNTON, J., Concurring. Whether Keyes v. Little York Company, 53 Cal., 724, is or not overruled by Hillman v. Newington, 57 Cal., 62, I express no opinion. No question of that kind, in my judgment, is involved in this case or necessary to its decision, and therefore I forbear to give any opinion upon it. As to the other points discussed in the opinion of justice McKee, I agree with what is said, and the conclusion reached by him.

SHARPSTEIN, J. and Ross, J., concurring. We think the decree in its entirety should be affirmed.

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