People Ex Rel. Robarts v. Russ

[103]

GAROUTTE,J.

—Defendants were the owners of a certain tract of marsh and tide land under patents from the state of California. A navigable stream known as Salt River bordered this land upon one side. Certain tributaries of this river, designated as sloughs, penetrated these lands of defendants in various directions. The water in these sloughs came from the ocean by way of Salt River, and rose and fell with the tides. For the purpose of reclaiming their lands, defendants erected dams across these sloughs, thus preventing the waters of Salt River from ebbing and flowing therein. The state, upon the relation of one Robarts, brought the present action to abate these dams, claiming them to be public nuisances. This claim is based upon two grounds: 1. It is alleged that these various sloughs are navigable streams, and for that reason dams erected therein constitute a public nuisance. 2. It is alleged that by the erection of these dams the tidal area of Salt River is decreased; that the amount of water ebbing and flowing therein is likewise decreased; and that the daily action of these tidal waters flowing in the aforesaid sloughs and river kept the channel of said river and of Eel River Bar, its outlet, deep and navigable, and prevented the filling up of said river and Eel River Bar with

debris

and sediment. It is then alleged that these dams, by reason of said causes, obstructed the free passage, use, and navigation in the customary manner of Salt River and Eel River Bar. Issue was joined upon both of these theories of the complaint, and after the testimony of many witnesses had been given, the court made its findings of fact. The pivotal questions in the case rest upon a few of these findings, and the present appeal being from an order denying a motion for a new trial, the sufficiency of the evidence to support them is one of the matters directly confronting us.

1. It is found as a fact that these certain sloughs, tributaries of Salt River, are not navigable streams.

2. It is

1

also found “that the reclamation of the said land, and the damming of said Jacks Slough and said sloughs A, B, and C, as hereinbefore found, lessens the tidal area of said Salt River and Eel River, but, other than the reclamation of such land and the damming of said sloughs, the said defendants have not, nor have either thereof, in any manner, or at all, obstructed or interfered with the free or any passage or use of said Salt River or Eel River Bar.”