No. 8,834.

PEOPLE v. GOLD RUN DITCH AND MINING COMPANY.

In Bank. Filed November 25, 1884.

HYDRAULIC MINING INJUNCTION SUBJECT TO CONDITIONS.-The plaintiff being entitled upon the facts found, to a perpetual injunction to compel the discontinuance of the acts complained of, as stated in the preceding opinion, the court cannot make the injunction subject to the condition that "the defendant may at any time, as it may be advised, apply to the court to have the decree and restraining order modified, or vacated, and set aside. And whenever, upon such showing, it shall appear that efficient means have been provided to impound, detain and hold back such tailings at any point on said American river above Alder creek, and that such means are sufficient to detain all bowlders, cobble-stones, gravel and the heavier sand, then said defendant shall be entitled to have said decree vacated and set aside."

APPEAL from part of a judgment of the superior court for Sacramento county. The opinion states the fact.

A. L. Hart, Attorney General, George Cadwalader, A. L. Rhodes, Richard Bayne and 1. S. Belcher for the appellant.

J. K. Byrne, W. C. Belcher, S. M. Wilson, W. T. Wallace and Stewart & Herrin, for the respondent.

MCKEE, J. This is a counter-appeal from the last clause in the judgment entered in this case.

As we held on the appeal of the defendant, the plaintiff was entitled, upon the finding of facts, to a perpetual injunction to compel the discontinuance of the acts complained of; the law gave it, and the court awarded it; but it made the judgment by which it awarded the perpetual injunction subject to this condition, viz.: The said defendant may, at any time, as it may be advised, apply to this court to have this decree and restraining order modified, or vacated, and set aside. And whenever, upon such showing, it shall appear that efficient means have been provided to impound, detain and hold back such tailings at any point on said American river above Alder creek, and that such means are sufficient to detain all bowlders, cobble-stones, gravel and the heavier sand, then said defendant shall be entitled to have said decree vacated and set aside."

We think this was erroneous; for the plaintiff was entitled to a final judgment absolutely or it was not. The court adjudged that it was entitled to a perpetual injunction, and that adjudication definitely settled the rights and relations of the parties to the controversy, as to the matters in litigation between them. By the judgment it was finally determined that certain acts as performed by the defendant, and threatened to be continued at the commencement of the action, amounted to a public nuisance, which must be forever enjoined. The rights thus finally determined could not be sujected to be disturbed or changed, annulled or set aside upon the performance by the defendant of new and independent acts, at some near or remote period in the future.

It is not the duty of a court to make provision in its final judgment for a reopening or renewal of a controversy which it closes by its judgment. Reipublicae ut sit finis litum. As is said in Joyce on

Injunctions, vol. 1, p. 107: "Where a plaintiff has proved his right to an injunction against a nuisance or other injury it is no part of the duty of the court to inquire in what way the defendant can best remove it, and the plaintiff is entitled to an injunction at once, unless the removal of the injury is physically impossible; and it is the duty of the defendant to find his own way out of the difficulty, whatever inconvenience or expense it may put him to." See also Attorney-General v. The Colney Hatch Lunatic Asylum, L. R. 4 Chy. App. 146.

Besides, while the plaintiff was entitled as matter of right, to a perpetual injunction pure and simple, the provision, inserted in the judgment to that effect, in favor of the defendant is of no benefit to the defendant; for if it be possible to permanently impound the debris, etc., which the court perpetually enjoins it from dumping into the American river, the defendant has the right to adopt such means as may be within its power for that purpose; and the right to do so exists independent of the judgment, and may be exercised at all times, without reference to it. The perpetual injunction does not restrain the defendant from conducting its business in a lawful manner, and any means adopted to that end are lawful.

That part of the judgment appealed from is therefore reversed. MYRICK, J., MORRISON, J., and THORNTON, J., concurred.

Ross, J., SHARPSTEIN, J., and McKINSTRY, J., dissenting. Inasmuch as in our opinion the decree as entered in the court below should be affirmed, we dissent from the above judgment.

No. 9,396.

PAIGE V. ROCKY FORD CANAL AND IRRIGATION COMPANY.

In Bank. Filed November 26, 1884.

FINDINGS HELD too IndefiniTE AND UNCERTAIN to sustain the judgment.

APPEAL from a judgment of the superior court for Tulare county.

Brown & Daggett for the appellants.

Atwell & Bradley, for the respondent.

THE COURT. The findings are too indefinite and uncertain 'to sustain the judgment.

Judgment and order reversed, and cause remanded for a new trial.

No. 7.763.

DUNNE ET AL. v. DUNNE.

In Bank. Filed November 26, 1884.

JUDGMENT AFFIRMED for the reasons given in the opinion of the department, reported in 3 West Coast Rep., 426.

APPEAL from a judgment of the superior court for Santa Clara county, entered in favor of the plaintiffs, and from an order denying the defendant a new trial. The facts are stated in the opinion of the department, reported in 3 West Coast Rep., 426.

William Matthews, for the appellant.

McKisick & Rankin, for the respondents.

THE COURT. This appeal was heard in department one of this court, and an opinion filed therein July 26, 1834: 3 West Coast Rep., 426. Subsequently, a hearing by the court in bank was granted. Such hearing has been had. We are satisfied with the judgment given in department, and with the reasons therefor. The judgment of the court below is therefore affirmed, except as to interest. The cause is remanded with instructions to modify the judgment by computing interest in accordance with the opinion of the department.

TION COMPANI

he judgment. art for Tulare

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ed for a

HOBBS V. AMADOR AND SACRAMENTS CANAL COMPAST ET AL.

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of the general and ordinary use of a common

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temporary injunction, at the instance in the sam

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PRELIMINARY INJUSTS-X 1.

iness in which the corporation

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will not be disturbed,

APPEAL from certais order of the user evicounty. The opisina suces the farme

George Cadwalader, for the mela

Freeman & Bates, for the res

ant, as a corporation, the court denied the motion to dissolve, and that ruling is assigned as error.

The injunction was issued to restrain the defendant from continuing to dump its mining debris, tailings, and other refuse matter from its mines, into certain water-courses which washed the debris and materials down upon and spread them over the plaintiff's land, rendering it valueless for agricultural or other purposes.

1. It is no part of the general and ordinary business of a corporation to do unlawful acts. Acts which are of a continuous nature and threaten to destroy or irreparably injure the property of another, are unlawful, and enjoinable, at the suit of the person injured, not upon the ground of interfering with a lawful business, but upon the ground that every person is entitled to the protection of the law in the use and enjoyment of his property. But it is claimed that the doing of the acts, restrained by the injunction, are necessary to the successful carrying out of the business in which the defendant is engaged; and that, if the defendant be enjoined from carrying on its business in that way, hydraulic mining cannot be carried on at all. Yet the acts restrained are none the less unlawful, if they are injurious to the private rights of others; and the defendant is bound by law to so conduct its business as that it shall not be derogatory to the private rights of other property owners.

In mining pursuits, as was said in Logan v. Driscoll, 19 Cal. 623, "defendant is entitled to use his mining claim in a lawful manner; but no manner can be considered lawful which precludes the plaintiff from the enjoyment of his rights." No person, natural or artificial, has a right directly or indirectly to cover his neighbor's land with mining debris, sand and gravel, or other material so as to render it valueless: Robinson v. Black Diamond Coal Mining Co., 57 Cal., 412; Potter v. Fremont, 47 Id., 465; Richardson v. Kier, 34 Id., 63; Courtright v. Bear River Ditch Co., 30 Id., 57.

2. The law does not require notice of an application for a temporary injunction to restrain a corporation from committing unlawful acts injurious to the applicant. Section 531, C. C. P., has reference only to lawful acts performed in the course of its general and ordinary business. A preliminary injunction granted against a corporation to restrain it from conducting its business in an unlawful manner, is therefore not void though granted without notice. Golden Gate Con., M., Co., v. Superior Court, 2 W. C. R., 736.

3. The court that grants a preliminary injunction may, in the exercise of its judicial discretion, modify the same at any time before the case terminates in a final judgment; and the order of modification will not be disturbed, unless there has been an abuse of discretion. Nothing of that character appears in the record before us. The orders appealed from are affirmed.

Ross, J., MCKINSTRY, J., SHARPSTEIN, J., MYRICK, J., and MORRISON, C. J., concurred.

No. 8,513.

HOOPER V. POWERS.

Department One. Filed November 28, 1884.

APPEAL HELD WITHOUT MERIT, and Judgment and Order AFFIRMED with damages. APPEAL from the superior court of the city and county of San Francisco.

Carson Bros., for the appellant.

H. C. Firebaugh, for the respondent.

THE COURT. There is no merit whatever in this appeal. Judgment and order affirmed, with twenty per cent. damages against the appellant.

No. 8,408.

SCHWEGERLE & Co. v. MUNDELL.

Department One. Filed November 28, 1884.

JUDGMENT AFFIRMED AND FINDINGS HELD TO HAVE BEEN WAIVED by consent in open court. APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiffs and from an order denying the defendant a new trial.

Cobb & Moore, for the appellant.

J. D. Sullivan, for the respondents.

THE COURT. The judgment was for the amount admittedly due the plaintiffs when the action was commenced. The alleged subsequent payment on account was not proved.

No error appears in the judgment roll. It appears from the order for judgment made in open court and in the presence of the attorney for defendant that findings were waived. Judgment and order affirmed.

No. 8,486.

SWIM v. BERNHARD.

Department One. Filed November 28, 1884.

PURCHASE OF STOLEN STOCK CERTIFICATES-RIGHTS OF BONA FIDE Purchaser.—Judgment and order reversed on authority of Barstow v. Savage Mining Company, 1 West Coast Rep., 116.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the defendant and from an order denying the plaintiff a new trial- The facts were similar to those in Barstow v. Savage Mining Company, 1 West Coast Rep., 116.

No. 49-6.