concurring. 1 fully concur in the learned and able opinion of the circuit judge in both its reason and conclusion. It exhausts the subject, and loaves nothing to be added, either by way of statement, argument, illustration, or authority. Under these circumstances, but for the magnitude of the subject and the great interest felt in the question, I would not deem it necessary to say more than this. And as it is, I shall only briefly state the conclusions I formed and sot forth at the close of the argument; and after the personal examination of the mines, mining operations, water-ways, and the adjacent country, I am by no means unconcerned or indifferent to the effect of this decision upon the large capital invested in these mines. But it is a fundamental idea of civilized society, and particularly such as is based upon the common law, that no one shall use bis property so as to injure the right of another — sic utere tuo ut alienum non laidas. From this salutary rule no one is exempt, — not even the public, — and the defendants must submit to it. Without it the weak would be at the mercy of the strong, and might make right.
It is admitted by the pleadings and upon the argument of this case that the defendants, by means of the hydraulic mining carried on by them on the head-waters of the Yuba river, materially aid in producing the following results: (1) The water of that stream and Feather and Sacramento is fouled so as to be unfit for ordinary domestic purposes; (2) the beds of these rivers are continually being filled up with the debris from said mines so as to seriously impair the navigation thereof, and cause them to overflow their hanks and injure and destroy large portions of the adjacent agricultural lands, by washing away the soil and improvements thereon, or covering the surface with said debris so as to render them wholly unfit for cultivation; (3) the property in the town of Marysville, at the junction of the Yuba and Feather rivers, is ever in danger of being overflowed and seriously damaged or destroyed by the floods so caused, to prevent which the owners thereof are and have been compelled to construct and maintain, at a large and continuing expense, levees around the greater portion of the town; (4) the fill in these rivers from the deposit of debris therein is materially and constantly increasing from year to year, and in *810the ease of an unfisually high water it may, and probably will, be greatly and suddenly increased, so that all the danger and injury resulting to the navigation of these rivers and the property adjacent thereto is constant, increasing, and will continue to increase with the continuance of the cause thereof — the hydraulic mining of the defendants as now practiced and carried on. Undoubtedly the acts of the defendants constitute a public nuisance, and the plaintiff being specially injured thereby, both in his farm and city property, has an undoubted right to maintain this suit for relief; and in the consideration of the questions which arise in the case, he ought to be regarded, not as an isolated individual suffering from a particular wrong, but as the representative of his co-sufferers in the community from the same wrong of which he complains.
The principal defense or justiffation of this wrong rests on three points:
(1) That the United States and the state have impliedly authorized the defendants, and all other hydraulic miners, to send their debris down these rivers regardless of the injurious consequences to the navigability or the adjacent property; (2) that the defendants have done the acts complained of for so long a time and under such circumstances as to acquire a prescriptive right to continue the same; and (3) that the suit is barred by the statute of limitations of the state. Sections 319, 343, of the Code of Civil Procedure.
In the exercise of its power to regulate commerce and establish post-roads, the United States may impair the navigability of a watercourse within a state; but it has no power, either as a land-owner or sovereign, to impair or obstruct the navigability of such water for the mere purpose of promoting or facilitating the working of mines upon the public lands, either by itself or its grantees. The United States have not attempted, nor intended to confer upon the defendants any right or privilege, to foul or fill the waters in question, or to in any way injure the property of -another,, or impair the use or enjoyment thereof as a means of working their mines, or otherwise. The act of July 26, 1866, (13 St. 251,) and the acts of July 9, 1870, (16 St. 217,) and May 10, 1872, (17 St. 91,) amendatory thereof, only purport to allow the “exploration” and “occupation” of the public mineral lands and to provide for their sale under certain circumstances, subject to the power of the state to make rules concerning “easements and drainage necessary to their complete development.” But this latter clause does not confer any power over the subject upon the state which congress did not possess. Indeed, it is only a prudential declaration of what there ought never to have been any doubt about, that the sale by the United States to the purchaser did not prevent the state from exercising whatever police power it may of right have over the subject.
The state has not authorized the defendants to use these waters or the adjacent lands for the purpose of depositing therein or thereon-*811their mining debris, otherwise than by section 1238, subd. 5, of the Code of Civil Procedure, which provides that “dumping places for working mines” and “outlets, natural, or otherwise,” for the How of tailings may bo taken under the right of eminent domain as for a public use. The supreme court of the state has already decided that this subdivision 5 is unconstitutional when applied to a ease of a single person seeking to condemn private property as a dumping or flowing place for mining, debris. And it is difficult to see on what ground a taking of property bj7 any number of persons for such a purpose can be held to be a taking of private property for a public use. But, be that as it may, this section does not authorize the defendants to use the plaintiff’s land, or the easement appurtenant thereto, as a dumping ground or flowing place for the tailings from their mines, until the same has been duly condemned for that purpose and compensation made to the owner.
By section 3 of the act admitting the state into the Union, (19 St. 452,) it is declared “that all the navigable waters within the state shall be common highways.” If these words mean anything, the state is thereby restrained from obstructing or authorizing obstructions to the navigation of the Feather and Sacramento, which shall prevent their being used as common highways, according to their capacity and condition when the state was admitted. See Hatch v. Wallamet Iron Bridge Co. 7 Sawy. 127; [S. C. 6 Fed. Rep. 326, 780.]
The defendants have no prescriptive right to do the acts complained of. And, first, there is no such continuity of possession, occupation, or use between these defendants and the many persons who may have preceded them in the occupation or working of the mines in this region, and the commission of similar wrongful acts to the injury of the plaintiff, or his co-sufferers, so as to entitle them to claim the benefit of such acts, or the time occupied by them in support of their plea of prescription. But as the rule is that the use of an easement for such time as the statute makes an adverse possession a bar to the recovery of the possession of the pretaises, establishes a prescriptive right thereto, this question is not material, as the defendants appear to have been in the use of the rivers and adjacent lands for the flow and deposit of their tailings for five years before the commencement of this suit. But this is a public nuisance. No one can acquire a right by prescription to commit a public nuisance as against the public; and I think the better opinion is, that an individual who sustains a special injury from such nuisance may maintain a suit for its abatement or an injunction to restrain its further commission without reference to the lapse of time. But it is essential to a proscriptive right to an easement in or upon the property of another that the owner should acquiesce in the use, while five years uninterrupted use of the waters of the Yuba and Feather by the defendants, as a place of flow and deposit for the debris of *812their mines, so as to fill the channels to a depth of no more than 10 feet, might, under some circumstances, be sufficient evidence of an acquiescence in such use by the plaintiff, it is not evidence of his acquiescence in the use of such waters for that purpose, so as to fill their channels to a depth of 11, 12, or more feet. The difference of one foot in fill may make a very material difference in the result to the plaintiff, both as to the navigation of the rivers and the depth and extent of the consequent overflow and deposit on the adjacent lands. In the case of a continuing and increasing trespass, it would be both illogical and unjust to infer "an acquiescence in the latter and more injurious act, merely from an acquiescence, actual or presumed, in the earlier and less harmful one. Now, the evidence in the case shows beyond a doubt that the fill of the rivers and the consequent qverflow and spread of the tailings has increased year by year for the past 10 years. And if the defendants continue to work their mines as they have done, this increase may reasonably be expected to go on' from year to year, requiring an additional outlay for the erection and elevation of levees each year, and' causing greater risk and danger to the persons and property in their vicinity.
There is no direct evidence of acquiescence in this case; and there is really little or no reason in the circumstances for saying that the plaintiff or the community, affected by the deposit of mining debris in these waters, ever acquiesced, in any proper sense of that term, in the conduct or state of things which has finally resulted so injuriously to him and them. Rather, it may be said, that they have borne a burden — not so heavy or dangerous at first, but gradually growing more so, until it has become intolerable — which, owing to the state of things heretofore existing in California, they could not well avoid if they would. But as the developments of later years, following the introduction into the mines of those wonderful hydraulic engines, “The Monitor” and “Little Giant,” throwing a stream of water upon the gravel and sand banks in some instances of nine inches in diameter, under a pressure of from 200 to 500 feet, have shown the serious character of the injury produced and threatened to be produced by this Titanic and unlimited washing of the' mountains into the rivers and on to the adjacent lands, the agricultural and commercial interests and communities injuriously affected thereby have begun to make themselves heard where once the temporary convenience and individual will of the miner was the only law. Since then the persons suffering from this wrong have objected and protested against its continuance in many ways, until finally they have, in the person of this plaintiff, appealed to this court for the relief to which they are entitled.
There is no statute of limitations applicable to this suit. Section 319 of the Code of Civil Procedure of California, cited by the defendants, is confined to actions involving the right to the actual possession of or the title to real property, and not a mere easement in the *813land of another. When, by lapse of time, accompanied by an undisturbed user, a party acquires an absolute right to -such easement, he is said to be entitled by prescription.
On the argument, counsel for the defendants insisted that dams could be built on the Yuba, above the valley, as, for instance, at a place called “The Narrows,” just above Smartsville, that would prevent the flow of debris from the mines and permanently detain them in the mountain courses of the river; and upon this assumption it was asked that if the court found that defendants were committing a nuisance to the injury of the plaintiff, as alleged in the bill, it would, instead of enjoining them directly, require them to construct, or cause to be constructed, dams sufficient to impound their debris in the bed of the stream before it reaches the valley, and, in the mean, time, allow them to operate their mines as at present. In other words, the court is asked to allow the defendants to continue the commission of the nuisance unrestrained until they can try the experiment of abating or preventing it by moans of a dam. In my judgment, this would bo a most lame and impotent conclusion from the premises. If the defendants can devise and carry out some lawful plan for impounding their debris in the mountains, they are at liberty to do so, so far as the plaintiff is concerned, but the experiment ought not to be tried at the expense of the plaintiff or by the denial or postponement of the relief to which he is now entitled. The injunction which the plaintiff seeks will not prevent the defendants from building dams, if they are otherwise entitled to do so, or from ultimately working their mines if it is found that by such means it can be done without injury to the plaintiff. Whether a dam can be constructed to stand the pressure to which it will necessary be subject under these circumstances, and whether it will be of any material use in preventing the flow of the debris and the filling of the river below, are questions upon which I am not fully advised. But from the evidence in the case, and my observations of the premises, I am strongly impressed with the belief that sufficient of the debris would still pass over the dam in suspension with the water to maintain and even increase the present fill of the river. Besides, it is a very serious question in my mind whether any person or community can or ought to be required to submit to the continuous peril of living under or below such a dam as this must necessarily be, if it is made high enough to impound the coarser material, and this merely for the convenience of another person or persons in the pursuit of his or their private business. It may be likened, at least, to living in the direct pathway of an impending avalanche.
I think the plaintiff is entitled to the relief asked, and concur in the decree ordered.