It remains to be considered whether there is danger to the navigability of the streams from the breaking, decaying, or destruction of cribs. The cribs are built of logs, about a foot in diameter, notched at the corners and laid in log-cabin style, lined within with heavy planks, tightly nailed, and covered on the outside with planks in a similar manner, so that the opening within the clear is about three or four feet square. It is claimed by the defendant that this material will not decay so long as it is kept moist by the surrounding mass. I do not think that contention is well established by the evidence. The cribs, in time, will decay, but they will last for many years, and they will doubtless considerably outlast the use of these pools for impounding reservoirs. After the pools shall have been filled up with mining débris, and these cribs shall no longer be the outlet of the water of the mine, I do not perceive any harm that can come from their decaying. By that time the impounded material must have become, to a large degree, compact and solidified, so that the caving in of any considerable portion of it need not be expected; and if it should cave in, it is plain to my mind that the result would be simply to choke up the shaft and permanently close the same. This view is supported by the history of the use of the shaft heretofore. It is proven that the sudden discharge into the shaft and tunnel of a greater amount of débris than the water could carry away has resulted in a choking up of the outlet, and that the mass of material and water above has simply served, by their pressure, to increase the difficulty of removing the material and reopening the shaft. In short, the danger to be apprehended from the operation of the North Bloomfield Mine, with its impounding reservoirs as constructed and used and intended to be used, is so remote and improbable that the court is not justified in enjoining the use of the property and thereby interdicting a valuable industry.

In arriving at this conclusion, I am not unmindful of the great damage to navigation that has heretofore resulted from the deposit of mining débris, nor of the important interests that are involved, but I am convinced that in the case of this particular mine the contingency has arisen which was contemplated in the decision of this court in the mining-débris cases, in providing that the decree might thereafter be modified upon a showing to the court that a plan to obviate the injuries had been successfully executed.

The injunction will be denied.

In the circuit court of the United States in and for the ninth circuit, northern district of California.

GILBERT, J.: The bill filed by the complainant in this case is similar to the bill in the case of the United States rs. North Bloomfield Mining Company, and the defenses here made are substantially the same as those made in that suit.

It is claimed in the answer of the defendants that they have established a system of impounding works whereby all material liable to injure the navigability of the streams referred to in the bill is impounded and retained upon the premises and does not enter the navigable streams.

The mining débris from the defendant's mines escape through a shaft 90 feet deep sunk in the lower level of the mine; thence it is discharged into a tunnel 3,000 feet long, which empties into Canyon Creek. About a quarter of a mile below the exit of the tunnel a dam has been constructed across the channel of the creek. This dam is a crib dam composed of heavy fir logs pinned together at the corners and raised to the height of 28 or 30 feet. The interior of the crib is filled with stones. The dam has caused the water to set back to a considerable distance in the stream, creating a pond. Into the upper portion of this pool the mining débris is carried from the tunnel. During the time this restraining devise has been used, the mining débris has worked its way down toward the dam and filled up some portion of the reservoir. The exact proportion of the pool which yet remains to be filled is not definitely fixed by the testimony, but the evidence would indicate that there still remains an impounding pool extending back from the dam a distance of about 1,000 feet, in which no portion of the débris or material discharged appears visible above the surface of the water.

It appears also that the current of the water in the dam is sluggish, and during the operation of the mine and the discharge of débris into the pool there has been an appreciable current in the water, but the evidence does not show that any considerable amount of débris calculated to lodge in the streams below or to injure their

navigability has been discharged over the dam. The width of the impounding pool is from 125 to 200 feet. The dam itself is constructed at a narrow place in the stream and it is anchored against rocks projecting from either side of the ravine, which rocks are in situ, are firm, and afford a strong and solid abutment to support the dam.

In deciding whether a mining operation conducted with this kind of an impounding device should be restrained by the court, I am moved, not so much by consideration of the question of whether or not the mining débris has been successfully impounded by the defendants heretofore as by the probability of its escape from the impounding pool and its consequent injury to the navigability of the lower streams in the future.

The dam in question appears from the evidence to be strong and well built. It is doubtless capable of restraining great pressure. It is a wooden dam, however, and it stands in the bed of a torrential stream. It necessarily follows that it is liable to be carried away by freshets. The same forces that have broken similar dams heretofore are liable at any time to destroy this dam, and if it should be thus destroyed no one can doubt that all the mining débris now impounded above the dam would by the same destructive force be carried into the stream below. Canyon Creck empties into the north fork of the Yuba River, about a mile below the dam. The north fork of the Yuba discharges its waters into the main Yuba, thence into the Feather River, thence into the Sacramento. The evidence would indicate that the impounding reservoir is not full, but that its capacity, while considerably reduced at present may be increased by raising the dam to a height of 100 feet or more. It is evident that with the increased height of the dam a corresponding increase in its length must be made, thereby entailing a corresponding increase of the danger of its breaking. In view of the principles announced in the decision of this court in the mining débris cases in 1881 (9 Sawyer, 441), and in view of the justly grounded apprehension of injury to navigation in the cases of any wooden dam constructed across the channel of a mountain stream, as in the cases now before the court, I am of the opinion that an injunction should issue as prayed for in the bill.

APPENDIX D.

THE CALIFORNIA DÉBRIS COMMISSION.

AN ACT to provide for the appointment, duties, and compensation of a débris commissioner, and to make an appropriation to be expended under his direction in the discharge of his duties as such commissioner.

The people of the State of California, represented in senate and assembly, do enact as follows:

SECTION 1. The governor of the State of California shall, on or before the first day of January, eighteen hundred and ninety-four, appoint a competent civil engineer for a period of four years only, to be known as and called the débris commissioner. SEC. 2. Said commissioner shall, during the time he shall be actually employed in the discharge of his official duties, receive a compensation of three hundred dollars per month and his necessary traveling expenses, to be allowed by the State board of examiners.

SEC. 3. Whenever any board of engineers of the United States Government shall have been appointed, with power to adopt plans and specifications for the construction of works for the impounding of mining débris, it shall be the duty of said débris commissioner to consult and advise with such board of engineers of the United States Government, and to examine and pass upon the merits of such works, and said débris commissioner shall determine whether or not such works are calculated to and sufficient to protect the navigable waters of the State, and to keep a record of such determinations.

SEC. 4. There is hereby appropriated, out of the general fund of the treasury of this State not otherwise appropriated, the sum of two hundred and fifty thousand dollars, no warrant against said sum to be drawn or paid until the United States Government shall have appropriated at least an equal amount, to be used in the construction of works for the restraining or impounding of mining débris in California, said moneys to be paid only upon orders drawn by the controller, upon the written request of the said débris commissioner, and to be drawn only for the payment of not more than one-half of the cost of the construction of any such works for restraining and impounding mining débris as shall have been approved by him and duly adopted and recommended by engineers of the United States Governinent appointed for that purpose.

SEC. 5. The term of office of said débris commissioner shall be four years from the date of his appointment. He shall take the same oath of office as is provided by law for other State officers, and before entering upon the discharge of his duties shall give bond with sufficient sureties, to be approved by the governor of the State, in the sum of fifty thousand dollars, for the faithful discharge of his duties as such officer.

SEC. 6. The said débris commissioner shall have the power to appoint a secretary, at a monthly salary to be fixed by said commissioner, not exceeding one hundred and twenty-five dollars per month; said secretary to hold office at the pleasure of the said commissioner. Provided, however, That no secretary shall be appointed until said débris commissioner shall enter upon the actual discharge of his duties. SEC. 7. All expenditures authorized by the provisions of this act shall be subject to the approval of the State board of examiners; and the State controller is hereby authorized to draw his warrant for all expenditures not in excess of the appropriation herein provided for, so approved by the State board of examiners, and the State treasurer is hereby directed to pay the same.

APPENDIX E.

AN ACT to create the Cali.ornia Débris Commission and regulate hydraulic mining in the State of California.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That a commission is hereby created, to be known as the California Débris Commission, consisting of three members. The President of the United States shall, by and with the advice and consent of the Senate, appoint the commission from officers of the Corps of Engineers, United States Army. Vacancies occurring therein shall be filled in like manner. It shall have the authority and exercise the powers herinafter set forth, under the supervision of the Chief of Engineers and direction of the Secretary of War.

SEC. 2. That said commission shall organize within thirty days after its appointment, by the selection of such officers as may be required in the performance of its duties, the same to be selected from the members thereof. The members of said commission shall receive no greater compensation than is now allowed by law to each, respectively, as an officer of said Corps of Engineers. It shall also adopt rules and regulations, not inconsistent with law, to govern its deliberations and prescribe the method of procedure under the provisions of this act.

SEC. 3. That the jurisdiction of said commission, in so far as the same affects mining carried on by the hydraulic process, shall extend to all such mining in the territory drained by the Sacramento and San Joaquin river systems in the State of California. Hydraulic mining, as defined in section eight hereof, directly or indirectly injuring the navigability of said river systems, carried on in said territory other than as permitted under the provisions of this act, is hereby prohibited and declared unlawful.

SEC. 4. That it shall be the duty of said commission to mature and adopt such plan or plans, from examinations and surveys already made and from such additional examinations and surveys as it may deem necessary, as will improve the navigability of all the rivers comprising said systems, deepen their channels and protect their banks. Such plan or plans shall be matured with a view of making the same effective as against the encroachment of and damage from débris resulting from mining operations, natural erosion, or other causes, with a view of restoring, as near as practicable and the necessities of commerce and navigation demand, the navigability of said rivers to the condition existing in eighteen hundred and sixty, and permitting mining by the hydraulic process, as the term is understood in said State, to be carried on, provided the same can be accomplished without injury to the navigability of said rivers or the lands adjacent thereto.

SEC. 5. That it shall further examine, survey, and determine the utility and practicability, for the purposes hereinafter indicated, of storage sites in the tributaries of said rivers and in the respective branches of said tributaries, or in the plains, basins, sloughs, and tule and swamp lands adjacent to or along the course of said rivers, for the storage of débris or water or as settling reservoirs, with the object of using the same by either or all of these methods to aid in the improvement and protection of said navigable rivers by preventing deposits therein of débris resulting from mining operations, natural erosion, or other causes, or for affording relief thereto in flood time and providing sufficient water to maintain scouring force therein in the summer season; and in connection therewith to investigate such hydraulic and other mines as are now or may have been worked by methods intended

to restrain the débris and material moved in operating such mines by impounding dams, settling reservoirs, or otherwise, and in general to make such study of and researches in the hydraulic mining industry as science, experience, and engineering skill may suggest as practicable and useful in devising a method or methods whereby such mining may be carried on as aforesaid.

SEC. 6. That the said commission shall from time to time note the conditions of the navigable channels of said river systems, by cross-section surveys or otherwise, in order to ascertain the effect therein of such hydraulic mining operations as may be permitted by its orders and such as is caused by erosion, natural or otherwise. SEC. 7. That said commission shall submit to the Chief of Engineers, for the information of the Secretary of War, on or before the fifteenth day of November of each year, a report of its labors and transactions, with plans for the construction, completion and preservation of the public works outlined in this act, together with estimates of the cost thereof, stating what amounts can be profitably expended thereon each year. The Secretary of War shall thereupon submit same to Congress on or before the meeting thereof.

SEC. 8. That for the purposes of this act "hydraulic mining" and "mining by the hydraulic process," are hereby declared to have the meaning and application given to said terms in said State.

SEC. 9. That the individual proprietor or proprietors, or in case of a corporation its manager or agent appointed for that purpose, owning mining ground in the territory in the State of California mentioned in section three hereof, which it is desired to work by the hydraulic process, must file with said commission a verified petition, setting forth such facts as will comply with law and rules prescribed by said commission.

SEC. 10. That said petition shall be accompanied by an instrument duly executed and acknowledged, as required by the law of the said State, whereby the owner or owners of such mine or mines surrender to the United States the right and privilege to regulate by law, as provided in this act, or any law that may hereafter be enacted, or by such rules and regulations as may be prescribed by virtue thereof, the manner and method in which the débris resulting from the working of said mine or mines shall be restrained, and what amount shall be produced therefrom; it being understood that the surrender aforesaid shall not be construed as in any way affecting the right of such owner or owners to operate said mine or mines by any other process or method now in use in said State: Provided, That they shall not interfere with the navigability of the aforesaid rivers.

SEC. 11. That the owners of several mining claims situated so as to require a common dumping ground or dam or other restraining works for the débris issuing therefrom in one or more sites may file a joint petition setting forth such facts in addition to the requirements of section nine hereof; and where the owner of a hydraulic mine or owners of several such mines have and use common dumping sites for impounding débris or as settling reservoirs, which sites are located below the mine of an applicant not entitled to use same, such fact shall also be stated in said petition. Thereupon the same proceedings shall be had as provided for herein.

SEC. 12. A notice specifying briefly the contents of said petition and fixing a time previous to which all proofs are to be submitted shall be published by said commission in some newspaper or newspapers of general circulation in the communities interested in the matters set forth therein. If published in a daily paper, such publication shall continue for at least ten days; if in a weekly paper, in at least three issues of the same. Pending publication thereof said commission, or a committee thereof, shall examine the mine and premises described in such petition. On or before the time so fixed all parties interested, either as petitioners or contestants, whether miners or agriculturalists, may file affidavits, plans, and maps in support of their respective claims. Further hearings, upon notice to all parties of record, may be granted by the commission when necessary.

SEC. 13. That in case a majority of the members of said commission, within thirty days after the time so fixed, concur in a decision in favor of the petitioner or petitioners, the said commission shall thereupon make an order directing the methods and specifying in detail the manner in which operations shall proceed in such mine or mines; what restraining or impounding works, if facilities therefor can be found, shall be built and maintained; how and of what material; where to be located; and in general set forth such further requirements and safeguards as will protect the public interests and prevent injury to the said navigable rivers, and the lands adjacent thereto; with such further conditions and limitations as will observe all the provisions of this act in relation to the working thereof and the payment of taxes on the gross proceeds of the same: Provided, That all expense incurred in complying with said order shall be borne by the owner or owners of such mine or mines.

SEC. 14. That such petitioner or petitioners must within a reasonable time present plans and specifications of all works required to be built in pursuance of said order

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for examination, correction, and approval by said commission; and thereupon work may immediately commence thereon under the supervision of said commission or representative thereof attached thereto from said Corps of Engineers, who shall inspect same from time to time. Upon completion thereof, if found in every respect to meet the requirements of the said order and said approved plans and specifications, permission shall thereupon be granted to the owner or owners of such mine or mines to commence mining operations, subject to the conditions of said order and the provisions of this act.

SEC. 15. That no permission granted to a mine owner or owners under this act shall take effect so far as regards the working of a mine, until all impounding dams or other restraining works, if any are prescribed by the order granting such permis sion, have been completed and until the impounding dams or other restraining works or settling reservoirs provided by said commission have reached such a stage as, in the opinion of said commission, it is safe to use the same: Provided, however, That if said commission shall be of the opinion that the restraining and other works already constructed at the mine or mines shall be sufficient to protect the navigable rivers of said systems and the work of said commission, then the owner or owners of such mine or mines may be permitted to commence operations.

SEC. 16. That in case the joint petition referred to in section eleven hereof is granted, the commission shall fix the respective amounts to be paid by each owner of such mines toward providing and building necessary impounding dams or other restraining works. In the event of a petition being filed after the entry of such order, or in case the impounding dam or dams or other restraining works have already been constructed and accepted by said commission, the commission shall fix such amount as may be reasonable for the privilege of dumping therein, which amount shall be divided between the original owners of such impounding dams or other restraining works in proportion to the amount respectively paid by each party owning the same. The expense of maintaining and protecting such joint dam or works shall be divided among mine owners using the same in such proportion as the commission shall determine. In all cases where it is practicable restraining and impounding works are to be provided, constructed, and maintained by mine owners near or below the mine or mines before reaching the main tributaries of said navigable waters.

SEC. 17. That at no time shall any more débris be permitted to be washed away from any hydraulic mine or mines situated on the tributaries of said rivers and the respective branches of each, worked under the provisions of this act, than can be impounded within the restraining works erected.

SEC. 18. That the said commission may at any time, when the condition of the navigable rivers or when the capacities of all impounding and settling facilities erected by mine owners or such as may be provided by Government authority require same, modify the order granting the privilege to mine by the hydraulicmining process so as to reduce amount thereof to meet the capacities of the facilities then in use, or if actually required in order to protect the navigable rivers from damage, may revoke same until the further notice of the commission.

SEC. 19. That an intentional violation on the part of a mine owner or owners, company, or corporation, or the agents or employés of either, of the conditions of the order granted pursuant to section thirteen, or such modifications thereof as may have been made by said commission, shall work a forfeiture of the privileges thereby conferred, and upon notice being served by the order of said commission upon said owners or owners, company, or corporation, or agent in charge, work shall immediately cease. Said commission shall take necessary steps to enforce its orders in case of the failure, neglect, or refusal of such owner or owners, company, or corporation, or agents thereof, to comply therewith, or in the event of any person or persons, company, or corporation working by said process in said territory contrary to law.

SEC. 20. That said commission, or a committee therefrom, or officer of said corps assigned to duty under its orders, shall, whenever deemed necessary, visit said territory and all mines operating under the provisions of this act. A report of such examination shall be placed on file.

SEC. 21. That the said commission is hereby granted the right to use any of the public lands of the United States, or any rock, stone, timber, trees, brush, or material thereon or therein, for any of the purposes of this act; that the Secretary of the Interior is hereby authorized and requested, after a notice has been filed with the Commissioner of the General Land Office by said Commission, setting forth what public lands are required by it under the authority of this section, that such land or lands shall be withdrawn from sale and entry under the laws of the United States.

SEC. 22. That any person or persons who willfully or maliciously injure, damage, or destroy, or attempt to injure, damage, or destroy, any dam or other work erected under the provisions of this act for restraining, impounding, or settling purposes, or for use in connection therewith, shall be guilty of a misdemeanor, and upon con