have been, used for the purpose of floating logs or timber." It is found that the south fork of Elk river had been so used in former years during extensive floods and with the aid of dams, but that its use for that purpose was found impracticable, and had been abandoned.

It is contended that the legislative declaration makes the river a navigable stream. I do not think so.

In the first place, it will not be presumed that the language of the act refers to such a use as would not bring the river within the definition of a navigable stream. Conceding that the definition includes all streams floatable for logs, still it must be capable of being used to an extent that would make it of some value as a highway; or at least a stream that would be so used for some portions of the year. That it could be so used for a few days in the rainy season, and by the aid of dams would not make the river navigable.

The court also found that the bed of the stream is private property. Perhaps this is only another finding that the river is non-navigable. If the 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. Private property cannot be taken for a public use without compensation. The fact that a small stream trickles through land which the public proposes to take for a highway does not authorize its being taken without compensation. On this point see Gould on Waters, section 111, and authorities cited in the note.

The finding upon the subject is fully supported by the law and the evidence. The dam is therefore not a purpresture. The charge in the complaint in regard to putting sawdust into the stream is found untrue. It is found that the sawdust is burned, and that such care is taken that very little gets into the water, and that which does reach the stream has no appreciable effect upon the water.

It was also found that the water is not essentially impaired by the waste water from the kitchen, or by the

escape of oily substances or waste matter from the mill, or by the erection of privies or the escape of offal from the slaughterhouse.

It cannot be denied that there was evidence tending to sustain all these findings.

There was evidence which tended to show that the water was not polluted to such a degree by any or all the matters complained of as to render it unfit for use or unwholesome. Even the expert witnesses did not agree upon this proposition. But when the sources of pollution are suppressed which are enjoined by the decree it cannot be said that, aside from the coloring matter which comes from the impounding of the logs, there is evidence that the water is materially polluted.

The evidence shows that the offal from the slaughterhouse is not thrown into the stream and does not get into the water; that only a portion of the drainage from the kitchen reaches the stream; that the privies are not over or immediately upon the banks of the

stream.

The people who are employed at defendant's mill themselves comprise a portion of the public. They have as much right to live on the south fork of Elk river as the inhabitants of Eureka have to live at Eureka. The one community cannot be suppressed for the benefit of the other.

Since they have the right to live there, they have a right to maintain privies, taking all reasonable precautions against unnecessarily polluting the water. All natural streams, to some extent, operate as sewers. The surface of the land is drained by them, and all industries, as well as mere inhabitancy, tend to add to the impurities of the natural streams.

The inhabitants and property owners upon these streams cannot be compelled to remove from them or be expropriated for the benefit of urban communities.

It is contended that the law of the case is changed by section 1, article XIV, of the state constitution, which makes the use of water for sale, rental, or distribution

CVII.

a public use. Certainly it was not intended by that provision to appropriate such water for the use of the public without compensation. The section recognizes the use as one in behalf of which the right of eminent domain may be invoked, and asserts the right of the state to regulate and control the sale, rental, and distribution of the same. (People v. Stephens, 62 Cal. 209; McCrary v. Beaudry, 67 Cal. 120.)

Nor do I see how the plaintiff's case is helped by section 374 of the Penal Code. I do not doubt the power of the legislature to make criminal the acts therein specified, when the direct effect of such acts is to pollute such waters. But there is nothing in the language of the section which makes it necessary to suppose that it was intended thereby to deprive riparian owners of property rights. It is not necessary to say that in the interest of public health the legislature cannot so restrict the rights of such owners as to materially interfere with the value of such rights. Such intent will not be presumed when the language leaves it doubtful.

The section, if it can be construed as limiting riparian rights at all, only has that effect as to certain riparian owners. In this case the defendant had, expended, as it is found, ninety thousand dollars in his mill and other property connected with his business many years before water was taken from the stream for the supply of Eureka. The use it is making of the stream, as between itself and inferior riparian owners, may be a reasonable one. It was so found. After he had built his mill, and had been for years engaged in manufacturing lumber, the relator built its works, and, in defiance of law, which provides that it shall only supply the city with pure water, commenced taking the water from the stream, four and one-half miles below the mill, to sell to the inhabitants of Eureka. The water had been condemned by the board of health of the city of Eureka before it was taken by the relator. Apparently the relator is attempting through this proceeding to enable itself to perform its duty to sell pure fresh

water. Instead of taking pure water, as the court found it could have done, it will make this stream pure by destroying the property of the defendant. On the supposition made, the industry and the mode of conducting it were perfectly lawful before the relator constructed its works, and would have continued to be so but for the unlawful selection of this stream as the source from which relator would take its supply.

It is not the law nor the act of the defendant alone. which constitutes the nuisance. The selection of this stream by the relator renders the act unlawful which before was not.

Perhaps such a thing may be done when it is absolutely necessary. The power of the legislature in this regard is very broad. But I do not think the legislature can, under the undefined and undefinable power called the police power, take private property for public use without compensation when such property can be condemned and paid for.

I have called attention to the fact that the law is not uniform in its operation, not only because it does not afford the same protection to rural and urban populations, but because it authorizes private persons in charge of a public use to select certain riparian owners, and, if the construction contended for by appellant be correct, take without compensation, for the pecuniary advantage of private speculators, a valuable portion of their property. Conceding that the plant of defendant. and its mode of conducting its work is lawful and proper as against inferior riparian owners, the relator had no right under the law to take water for the purpose of selling it to the inhabitants of Eureka without first removing the causes of pollution. This it could do, so far as defendant's mill is concerned, by condemning and paying for it. It cannot in this proceeding, nor could the legislature in the exercise of the police power, authorize it to take the property without compensation. As was said by the supreme court of Massachusetts: "The law will not allow rights of prop

erty to be invaded under the guise of a police regulation for the preservation of the health, or protection against a threatened nuisance; and when it appears that such is not the real object and purpose of the legis lation the courts will interfere to protect the rights of citizens." (Watertown v. Mayo, 109 Mass. 315; 12 Am. Rep. 694.)

If this law, therefore, has any force, as applied to this case, its sole effect must be to render criminal the specific acts mentioned in the statute. These were already unlawful, for they constitute nuisances. To declare them criminal is not to limit riparian rights.

The court found also that a considerable number of people reside upon the borders of the stream below the mill of defendant, who use the waters of said stream. They are inferior riparian owners, and the attorney general may present their grievances in this case.

The court found: "That during the greater part of the year defendant keeps in its dam large quantities of redwood, spruce and pine logs. That a liquid containing some coloring matter is discharged by the redwood logs into the water, which to some extent discolors the water of said stream and gives it a darkish appearance, and in a slight degree this discoloration remains in the water to the intake of the Ricks Water Company; but the quantity of liquid that escapes from said logs is comparatively small, and it does not render the waters of said stream offensive or repulsive to the senses, or greatly discolor, deteriorate, defile, or contaminate them, and it does not injure or essentially impair them for domestic and drinking purposes." Also that the logs are not covered with foul organic matter, or other substance which contaminates the water; that prior to the erection of defendant's dam the waters of Elk river had a darkish appearance, owing to the falling of leaves into the stream, to juices from the roots of trees and fallen timber, and the conditon of the water now, in respect to color, is very much as it has been for many years back.

It was also found that sawdust is not put into the