People v. Truckee Lumber Co.
Before: Fleet
Synopsis
Pish—Ownership op State—Title to Lands Immaterial.—The fish within the waters of the state constitute the most important constituent of that species of property commonly designated as wild game, the general right and ownership of which is in the people of the state; and to the extent that waters are the common passageway for fish, whether such waters flow over lands, the title to which is in the government of the state or of the United States, or over lands entirely subject to private ownership, they are deemed for such purposes public waters, and subject to all laws of the state regulating the right of fishery.
Id.—Extent op State’s Dominion—Non-navigable Waters—Resort and Passage op Fish.—The dominion of the state for the purpose of protecting its sovereign rights in the fish within its waters, is not confined to navigable waters, but extends to non-navigable streams, wherein fish are habited or accustomed to resort for spawning or other purposes, and through which they have freedom of passage to and from the public fishing grounds of the state.
Id.—Judicial Notice—Non-navigable Stream Connecting Navigable Lakes—Truckee River—Passageway op Fish.—The court will take judicial notice that the Truckee river, though a non-navi gable stream, has its source in Lake Tahoe, a large, navigable body of water lying partly in this state, and that it empties into Pyramid Lake, in the state of Nevada, which is also navigable; and that the river has from time immemorial afforded a natural and free passageway for the passage of fish habiting those lakes.
Id.—Injury to Fish—Pollution of Truckee River—Refuse from Sawmill—Public Nuisance—Injunction—Action by State.—The pollution of the Truckee river by refuse matter which is poisonous and deleterious to the fish therein, and which is deposited from a sawmill . operated on its bank, to the injury and destruction of the fish in the stream, is a public nuisance, which may be enjoined in an action brought by the attorney general in the name of the state.
Id.—Remedy—Punishment by Penal Code not Exclusive. —The fact that the acts complained of are made a misdemeanor, and punishable as such, does not make them less a nuisance, nor imply that the legislature intended to make the criminal remedy exclusive of the civil.
Id.—Relator—Information by Attorney General.—The attorney general is privileged to maintain an action to enjoin a public nuisance on his own information, without the intervention of a private relator.
Van Fleet, J. Appeal from an order refusing to vacate an injunction.
The action is in the name of the people, on the information of the attorney general, to restrain the commission of an alleged nuisance, the complaint alleging in substance that defendant, a corporation, maintains and operates a sawmill and box factory on the bank of the Truckee river, at the town of Truckee, in this state, in which it cuts and manufactures lumber and boxes; that said river is a fresh-water stream, having its source in the state of California and flowing into the state of Nevada, and is now, and for a long time prior hereto has been, stocked with fish; that defendant in operating its mill and factory has heretofore, and does now, place and •allow to pass into the waters of said river large quantities of refuse matter, consisting of sawdust, shavings, [399]slabs, edgings, waste, and other deleterious substances, the effect of which has been and is to pollute said stream, and the waters thereof, and render the same unfit for use, and which substances are poisonous and deleterious to the fish in said stream, and are killing, destroying and exterminating them; all of which is alleged to be in violation of the rights of the people, and a public nuisance; that defendant threatens, and unless restrained will continue, to commit said wrongful acts to plaintiff’s irreparable injury.
A preliminary injunction was granted ex parte on the filing of the complaint, which defendant subsequently moved to vacate. The motion was made upon the complaint alone, based upon the objection that the facts alleged made no case for relief. The motion being denied, this appeal ensued.
The sole question is whether the complaint states a cause of action, and this is to be determined precisely as if the pleading were subjected to a general demurrer.
The first point made against the complaint is that the facts alleged do not constitute a public nuisance within the definition of our code. But this objection would seem to overlook the most material feature of the complaint. It is alleged that the acts of defendant have the effect of polluting and poisoning the waters of the river, and thereby killing and destroying the fish therein. Anything which is “ an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or any considerable number of persons,” is a public nuisance. (Pen. Code, sec. 370; Civ. Code, secs. 3479, 3480.) The fish within our waters constitute the most important constituent of that species of property commonly designated as wild game, the general right and ownership of which is in the people of the state (Ex parte Maier, 103 Cal. 476, 483; 42 Am. St. Rep. 129), as in England it was in the king; and the right and power to protect and preserve such property for the common use and benefit is one of
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