Butte record., 1854-09-09
DISTRICT COTRT.
Ninth Judicial District August Term.
Hop. j. W. Nc Corkle, Presiding.

OcoiSe tltAScldlus vs., ", II, OiloH ct '+t'
Lewis and Harris for plaintiff, Baker and
Sexton for defendants, This was an action
brought by plaintiff against defendants, to
enjoin a nuisance, with prayer for per
petual injunction, and for damages.
The facts established by the Plaintiff we're,
that, he was and had been in the peaceabe
and Uninterrupted possession Of the lot and
premises described in his complaint, since some
time in the latter part of the year 1858, and
that while he was in the peaeeable possession
of said property, the defendents had excava
ted a ditch 10 or more feet wide twenty five
or thirty.teet long, and ten or fifteen deep in
in said lot, thereby destroying outhouses,
fences, etcetera. The evidence on the part Of
the plaintiff further established that the inj
ry was perm anent one, and that if defend
ants prosecuted their work, the ditch would
undermine his Hotel, to plaintiff great in
jury. 1t was further established that the lot
and premises described in complaint we're To-
Gated in the town Of Bidwall, and that the
same was about seventy five by eighty feet ;
and fur'her that he had erected thereon
houses and Improvements, and that he used
the same rs place Of habitation, and for gar
dening purp0ses-and that defenants had run
stream Of water across said lot Here the
plaintiff rested his cause.
The defendants set up in their answer an
adverse possession to the premises as a part Of
a mining claim-that they had taken up and
possessed according to miners customs and
usages They further answered by aYerring
/ that the lot and premises were mineral lands
and the precious metals contained therein be-
long to the State of California, and that they
had license from said State to work said
mines.
Under this answer the defendants attempt
ed to show, that the lot described in COM
plant was mineral land, and 50 considered
and also they attempted to show what the
rules and customs of the miners were in that
locaiity-to ali of which evidence plaintiffs
] counsel objected on the ground
1. That defendants had no right to show
1 that the lot was mineral land, and that the
mineral belongs to the State, until they had
established their right to work the same, by
the license set forth in their answer-that the
lot was mineral land, and that the mineral
belonged to the State, did not give them
right TO injure our possession to the same un-
til they could show a better present right to
the lot than plaintiffs possession. BY estab-
fishing better right in a third party than
plaintiffs, did not give the defendants a de-
fence, who had no right either in themselves
or derived from such thir party at the time of
the tresspass And further for the purposes
of the argument conceding that the supreme
court had decided that the mineral belonged
to the State it had also decided that the land
that contained it, belonged to the U. States.
Here then, by this decision, two adverse and
and incompatible rights are established and
recognized-the mineral in the State and the
land in the United States. Such being the
case presented by this decision, the State can
not exercise its rights to the detriment CT the
United States. In this conflict Of right and
the enjoyment of the same--the State and all
those claiming through her. must-go down,
must siccomb to the Federal constitution and
the laws enacted in pursuance to the same
The plaintiff beingin possession and using the
lot and premises for habitaucyand cultivation,
is protected in that right, not only by the
common law doctrine. that the party first il
possession is first in right, but by an express
provision in the United States laws Viewed
in this light, for the purposes of this action, it
is immaterial whether the defendants have or
have not the license to work the mines from
the State, since the State could not work it,
without destroying and injuring the United
States property in the land, she could not
give license to defendants to that which is
unlawful in herself. This defence therefore,
is inadmissble with or without said license,
and as such it is inadmissible to establish by
evidence an Illegal defence. In short, what
defendants wish to establish, if established in
law would be 70 defence.
Plaintiffs counsel also objected to the intro
duction, as evidence in this cause, the rules,
customs and regulations of the miners in that
locality, on the ground that the provision of
the statute making them evidence was un-
eonstitutional-tha it related to subject
matter over which the legislature had no ju-
risdiction. Counsel contended that the rules
customs and regulations by which mining