116 Cal. 397, Sac. 209, People v. Truckee Lumber Co.
| Judge | JUDGES: Van Fleet, J. Harrison, J., and Beatty, C. J., concurred. |
| Parties | THE PEOPLE, etc., Respondent, v. THE TRUCKEE LUMBER COMPANY, Appellant |
| Docket Number | Sac. 209 |
| Citation | 48 P. 374,116 Cal. 397 |
| Court | California Supreme Court |
| Date | 03 April 1897 |
Page 397
Department One
Appeal from an order of the Superior Court of Nevada County refusing to vacate an injunction. John Caldwell, Judge.
COUNSEL:
OPINION
Page 398
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,
Page 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
Page 400
the recognized prerogatives of the sovereign, coming to us from the common law, and preserved and expressly provided for by the statutes of this and every other state of...
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