about seventy feet in length, eight feet deep, and sixteen to eighteen feet in width, and which has been accumulating there for years. That the defendant allows and permits this large pile of manure to lie there and rot on the bank of said stream, and the drainage therefrom flows directly into the waters of said stream and pollutes the same, and renders the waters thereof offensive to the senses, and unwholesome and unfit for domestic uses. That defendant also maintains near said stream a corral or pen in which it keeps about twenty-five hogs. That the said stream forms one side of said pen, and the urine and droppings and filth from said hogs find their way into said stream, thereby polluting the waters thereof, and rendering the same offensive to the senses, and unwholesome and unfit for domestic uses."

And as matter of law it was found that the hogpen and manure-pile constitute nuisances, and defendant was enjoined from maintaining them.

From this part of the decree defendant appeals, and his first point is that this finding is not within the issues.

The hogpen and manure-pile are not mentioned in the complaint, and it is not found that they are such fixtures as usually accompany a sawmill. The complaint, however, speaks of outhouses and stables, and I think the findings sufficiently show that the cow-stable and hogpen are maintained in connection with the mill plant; and, notwithstanding appellant's criticism, that the manure-pile is caused by the cow-stable. Beyond this the complaint seems to be that the court did not suppress the stable itself rather than the use of it, which renders it a nuisance. I do not think there was any error here of which the defendant can complain.

2. The court found that Elk river is not a navigable stream. It is contended that it follows from that fact that fouling its waters cannot constitute a public nuisance. But it is found that "the waters of Elk river at and below the defendant's dam were, and have been, and now are, used by a considerable number of persons, who reside along the banks of said stream below the defend

ant's mill and dam." This constitutes such a public use as would make a pollution of the water by any unreasonable use a public nuisance.

We may leave out of view, therefore, the claims of the Ricks Water Company and the inhabitants of the city of Eureka altogether. While, as to lower riparian owners, the defendant is entitled to a reasonable use of the water, he has no right to pollute the stream by putting such matter directly into it.

The decision does not go to the extent that appellant apprehends. It does not determine that one may not depasture stock upon the lands comprising the watershed drained by the river, because they would necessarily pollute the water, nor that he cannot maintain stables and hogpens upon the land, but only that they must not be in, or directly upon, the banks of the stream. It holds that this is an unreasonable use of such streams by a riparian owner as against lower riparian owners. But if stock, not confined upon the river-banks, following their natural instincts cause such pollution it would be a different matter. So, if the hogpen and the cowstable were at a reasonable distance from the river, the fact that the winter rains washed some impurities into the stream would be something of which lower riparian proprietors could not complain. The acts enjoined are equivalent to actually putting the polluting material directly into the water. If the conformation of defendant's land is such that he cannot carry on a dairy without putting such filth directly into the water, then he must find some other use for the land. This seems to be the effect of the rule laid down in People v. Gold Run, 66 Cal. 138; 56 Am. Rep. 80.

The judgment is affirmed.

MCFARLAND, J., and HENSHAW, J., concurred.

Hearing in bank denied.

[No. 15907. Department Two.-May 2, 1895.]

THE PEOPLE EX REL. RICKS WATER COMPANY, APPELLANT, v. ELK RIVER MILL AND LUMBER COMPANY, RESPONDENT.

NAVIGABLE STREAM-SOUTH FORK OF ELK RIVER-CONSTRUCTION OF CODE.-Under section 2349 of the Political Code, declaring navigable all streams emptying into Elk river, "which are now, or at any time have been, used for the purpose of floating logs or timber," the south fork of Elk river, which is a small stream insufficient to flow single sawlogs, except during extreme winter freshets, and with the aid of dams to increase the flow of the stream, which use has been found impracticable and abandoned, is not a navigable stream within the meaning of the code.

ID.-STREAM, WHEN FLOATABLE FOR LOGS.-In order that a stream may be floatable for logs, within the meaning of the code, it must be capable of being used to an extent that would make it of some value as a highway, or at least it must appear that the stream could be so used for some portions of the year, and the fact that it could be so used for a few days in the rainy season, with the aid of dams, would not make the river navigable.

ID.-NON-NAVIGABLE STREAM-PUBLIC WAY-POWER OF LEGISLATURE. If a stream is, in fact, non-navigable, it is not a public way, and the legislature cannot make it such by merely enacting a law declaring it navigable, and so take private property for public use without compensation. ID-DAM ACROSS NON-NAVIGABLE STREAM-OBSTRUCTION-PURPRESTURE. The erection of a dam across the bed of a non-navigable stream is not an actionable obstruction nor a purpresture. ID.-OBSTRUCTION AND POLLUTION OF STREAM-FINDINGS-REFUSAL OF INJUNCTION.-In an action to restrain the obstruction of a stream by a dam impounding sawlogs for the use of a mill, and from polluting the stream by discoloration from the logs, and by allowing sawdust to find its way into the stream, and by discharging the waste water from the kitchen, and waste matter from the sawmill, and the escape of offal into the stream from privies and a slaughterhouse, where the court finds that the bed of the stream was private property, that the sawdust was burned, and what little got into the stream had no appreciable effect, and that the water was not polluted to such a degree by any or all of the matters complained of as to render it unfit for use or unwholesome, and the evidence sufficiently sustains the findings, and shows that the sources of the alleged pollution, other than the discoloration from the logs, were not over or immediately upon the banks of the stream, the court may properly decline to enjoin the acts complained of.

[D. RIGHTS OF PEOPLE EMPLOYED AT SAWMILL-REASONABLE PRECAUTIONS AGAINST POLLUTION OF STREAM.-The people employed at a sawmill, comprising a portion of the public, have as much right to live near the banks of a stream as the inhabitants of any community

on the stream below them, if they take all reasonable precautions against unnecessarily polluting the water, and inhabitants and property owners upon the stream cannot be compelled to remove or be expropriated for the benefit of urban communities.

ID. CONSTRUCTION OF CONSTITUTION-PUBLIC USE OF WATER-COMPENSATION.-Section 1 of article XIV of the state constitution, making water for sale, rental, or distribution a public use, was not intended to appropriate water for the use of the public without compensation.

ID.-CONSTRUCTION OF PENAL CODE-PROPERTY RIGHTS OF RIPARIAN OWNERS.-Section 374 of the Penal Code, making criminal the acts therein specified when the direct effect of such acts is to pollute the waters from which the inhabitants of any city or town are supplied, was not intended to deprive riparian owners of property rights. ID. RESTRICTIONS UPON RIGHTS OF OWNERS-PRESUMPTION.-An intention of the legislature to restrict the rights of riparian owners, so as materially to interfere with the value of such rights, will not be presumed when the language of the statute leaves it doubtful. ID. PRIORITY OF USE OF STREAM FOR MILL-RIGHTS OF WATER COMPANY-SUPPLY OF TOWN-PROTECTION OF PRIVATE PROPERTY.Where a riparian owner has expended large means for the erection of a mill and other property connected with his business many years before water was taken from the stream below for the supply of a town, and the use made by the millowner of the stream is a reasonable one, as against lower riparian owners, a water company desiring to supply the inhabitants of a town with water cannot, instead of taking pure water from another source, seek to make the stream more pure for the supply of the town by destroying the property of the millowner without compensation. ID.-EMINENT DOMAIN-POLICE POWER OF LEGISLATURE.-Although the police power of the legislature is very broad, it cannot thereunder take private property for public use without compensation, when such property can be condemned and paid for.

APPEAL from a judgment of the Superior Court of Humboldt County.

The facts are stated in the opinion of the court.

Barclay Henley, Henley & Costello, J. N. Gillett, L. F. Puter, Attorney General W. H. H. Hart, and E. W. Wilson, for Appellant.

Buck & Cutler, for Respondent.

TEMPLE, J.-This action was brought to restrain the defendant from polluting the waters of Elk river, from which the Ricks Water Company obtains water to sell to the inhabitants of the city of Eureka.

The complaint charges defendant with polluting Elk river. 1. By maintaining its barn, slaughterhouse, corral, and stables so near the stream that the water becomes polluted thereby; 2. By maintaining water-closets so that the drainage from them flows into the stream; 3. By allowing sawdust to find its way into the stream; 4. By discharging into the stream slops from its kitchen; and 5. By impounding a large number of redwood logs in the stream, from which logs a dark, juicy liquid escapes, and which logs are covered with dust and other deleterious substances; by all of which the water is polluted and discolored, so as to be unfit for domestic use.

The court declined to enjoin the defendent from impounding logs in the stream, or from dumping sawdust upon the banks, or from allowing the kitchen drainage to flow into the stream, or to abate the privies as nui

sances.

From that portion of the decree and from a refusal to award a new trial plaintiff takes this appeal.

The court did enjoin the defendant from allowing the accumulation of manure and filth on the banks of the stream above its dam, and allowing the washings from the same and from the hogpen to escape into the stream. From that portion of the decree awarding the plaintiff this relief the defendant has appealed.

In a separate count the plaintiff also averred that Elk river is a navigable stream, and was made so by section 2349 of the Political Code; that in 1886 defendant wrongfully constructed, and has ever since maintained a dam across said stream, whereby said stream has been and is wholly obstructed.

Upon this issue the court found, in effect, that the south fork of Elk river is a small stream insufficient to float single sawlogs, except during extreme winter freshets, and with the aid of dams to increase the flow of the stream; that it is not navigable and was not made so by section. 2349 of the Political Code.

By that section all streams emptying into Elk river are declared navigable, "which are now, or at any time