The Amador & Sacramento Canal Company, a California corporation, brought suit in the superior court of Sacramento county, California, against the Plymouth Consolidated Gold Mining Company, a New York corporation, and Alvinza Hayward, E. L. Montgomery, and Walter S. Hobart, citizens of California, to enjoin them from polluting the waters running into the canal of the Amador Company, and to recover $25,000 damages for what had already been done in that way.
The material averments in the complaint, as to the alleged wrongful acts of the defendants, are as follows: '(3) That the plaintiff is, and for more than ten years last past has been, the owner in fee and in possession of a certain canal, about 26 miles long, situate partly in the county of Amador, in said state, and partly in said county of Sacramento, called by the Amador & Sacramento Canal, extending from a dam across the Cosumnes river, near the south-east corner of section twenty, in township eight north, range nine east, Mount Diablo base and meridian, in said county of Amador, to Sebastopol, in said county of Sacramento, in section sixteen, township seven north, range seven east, Mount Diablo base and meridian; and is also the owner of the water usually flowing through said canal, and has used the said canal and water during all of said period of ten years for mining and agricultural purposes, and selling water for such purposes. (4) That the defendant the Plymouth Consolidated Gold Mining Company is the owner of two certain mills, situate at Plymouth, in said county of Amador, constructed and used for crushing gold-bearing quartz, and since the second day of January, 1882, has been such owner, and the defendants for three years next before the commencement of this action have, at said mills, carried on and conducted the business of crushing gold-bearing quartz rock, and extracting and collecting gold therefrom, and have used large quantities of water in and about their business taken from the Moquelumne river. (5) That from the said mills the corporation defendant, extending in a direction a little north of west, has a valley through which runs Little Indian creek until it intersects the said canal of plaintiff near the south-east corner of section four, in township seven north, range nine east, Mount Diablo base and meridian, and the defendants, since the first day of December, 1881, have used the said creek at their said mills as a dumping place for the tailings, sand, sediment, silt, and other debris flowing to and formed by the working of said mills. (6) That in and about the working and management of said mills the defendants used large quantities of water taken from the Moquelumne river and other streams by them, and which water mixed, defiled, and polluted with said tailings, sand, quartz-sand, sediment, silt, and other debris, has been, during the three years next before the commencement of this action, poured into said creek, and carried by said water in said creek to and into the said canal of plaintiff. (7) That the said water so mixed, pollated, and defiled by the defendants, and discharged by them into the plaintiff's canal as aforesaid, has, during all of said three years, mingled with the pure water flowing in the said canal, and has deposited therein all the said tailings, sand, quartz-sand, sediment, silt, and other debris, as aforesaid; and the same has been swept along the said canal of plaintiff by the force of the water flowing therein, and has been distributed and deposited therein, and thereby the bed of the said canal became and was raised, and the canal obstructed and damaged, and filed up, and rendered unfit for use, and the water in said canal became loaded with said debris, and thereby rendered less useful.'