Columbia gazette., 1854-06-10
MINERS AND DITCHING COM
PANIES.

The following is the charge of Judge
McCorklo, in the case recently tried in
our District Court of the Union Water
Co. against Moss, Smith & Ewing, as
reported in the State Journal :-Pla-
Ger Dcmocrat.
GE>rLEMEx:-Thc condition Of the
mineral regions. as it regards the appli-
cation Of the law to the peculiar and
anomalous eases which arise in them is
novel and perplcxing. Congress has
not only legislatcd for these regions,
but has excluded them in turns from the
operation of all laws enacted for this
State. The law extending pre-emp
tion privileges to the public lands Of
thi. Stste, and authorizing their survey
expressly excludes the mineral lands
ths law proposed to be passed, donating
lands to aid in the construction of rail-
roads, also except them; so that we are
lei, in no doubt as to tie position and
policy OF the Government Of The United
States, which is and has been to leave.
them open to all, and free to all, to
work out the gold and other minerals
found in them In all respects ihen,
the mineral land. of this State, AMI
those occupying them, are in the same
condition that the whole State Of Cali
fornia and her population we're before
tho adoption of our Constitution, and
our admission as State in'o the Union
The power to lcgislate for or control by
statutory enactment the mineral lands,
or the right and interests of those work
ing aud occupying them, is cenied to
the Legislature OF the State.
If the Legislature cannot, therefore,
interfere to regulate ,heniby statute has
tha. body tho power to put tho common
law in force and give it the vitality and
force of statute of the State e:l The
answer is plsinlv, no. Furthermore,
the principle Of the common law, if APP.
pliod TO the cases arising in the mineral
regions. and between miners, would op-
crate the most manifest injustice and
injury. Priority of appropriations and
occupancy is the rule of right, and the
"hcd rock" on which all claim, and all
right and title is based in the mineral
regions Of this State This rule is the
common law of the miner and Of the
minrra. regions.
Water is a necessary and indispensa-
hl. -lcm:p, for mining purposes: and
the locator oi a mining claim is entitled
Ia sufficient to extract the gold there
from aud his right to the use of water
for r,'ch purpose. rs well as hs title -
is mining claim itself. depends upon
rii,r appropriation and occupation.
The application of the principles |
hav" thus laid down sill enable you to
decide this case correctly.
The tir.,, and in fact the main ques-
tion in the case tor you to. decide from
tn, testimony is:
Had the plaintiffs constructed their
ditch. ,cc,spied and used the water run
ming ,ltfnugh it for mining purposes
prior to the locS'icn and occupancy of
the mining claims by the defendants on
Br1shy Creek If you shal! find from
th. testimony chat the ditch was con
s.,net~d, snl the water conducted
through /. was used fer mining purposes
r,ior 10 the location and workin. of de-
PENDANTS miring claims, then your ver-
diet must be- for the plaintiff, and if
otherwise, for the defendants.
No ditch company or any one e,se,
can divert water from its natural chan
n,l for any purpose whatever, if the
water is in use by any occupant Of min
cral or ether lands on the banks Of the
ssrcam. further than the surplus over
wis, may be necessary to supply the
prior occupant. sgg
The prescription claim attempted to
ls set uphy the defendants has not
been sufficiently proven to cu'itlc it to
our consideration, the terms of the law
OF Congress or the presumption requi-
sites of the Statute Of the State, not
having in any respect been complied
With, SO far as the testimony shows.
FonrrSATE ESCAPE FROM GRIz-
IL