Butte record., 1854-09-09

the entire people, but as would appear by
counsel--to the mining localities, composed as
they mostly are, Of a Heterogeneous mass, rep
resentatiyes Of every tongue and from every
land The legislative power by the constitution
is vested in the legislature and desigEedly so
and it cannot placeit elsewhere, for any prr-
pose, but in the manner prescribed by that
instrument De}cgatuS non potest de{egare
is the law To make any power good and
valid, legislative or otherwise there must be
person or body that has the legal capacity to
receive and exercise that power. In this case,
the powers Of the legislature being delegated,
it could not grant them. 1t has not therefore
the legal capacity to grant, and i! it had that
Iower in this matter it has not granted them
to any person or body that has tie legal ca
pacity to receive and exerise it. in the estab-
lishment CT controlling mining rights to claims.
In this matter it has attempted to grant the
legislative power to make rules regulations
and customs for the different mining localities
to a body that has no egal exist tence as body.
and as such the power falls to pass from
the granting power, and as a consequence ali
such rules, regulations and customs have, ana
can have, no legal existence, and for this rea-
son--sueh rules, regulations and customs
whatever they were or might be--eould not
establish right or defence in the defendants,
and therefore, as evidence, was nadmissabIo.
The defendants counsel urged the alniss-
ability of this evidenee-that by the Supreme
Court Of this State it had been decided-that
the minerals in this State belonged to the
State, and that she had given general IL
cense to any one that was so disposed, to 60
and dig it out, whenever and wherever they
pleased, and as the rules, regulations and
customs of the different mining localities had
prescribed; and for their authority relied
the Statute, in relation topossessory actions
the provision in relation to making mining
rules &C., evidence; and upon the decision of
the Supreme Court in the case Of Hicks ct
al, VS.. Bell ct al.
The Court overruled plaintiffs objection to
the evidence. to which there was an exception
taken. And the defendants under their an
swer and the ruling of the Court showed that
the lot described in complaint, was mineral
land, that it embraced part of the mining
claim they had taken up in a D., 1853. ac-
cording to the rules, customs and regulations
then in force in that locality; that they work
ed and possessed the same, according to said
rules, SC, and further that it had been the
uniform custom and rule in that locality, to
undermine houses, &C., and that said claim
was worked as all other mining claims were
worked then. Here the defence rested and
The cause was submitted to the Jury upon in
structions from the Court
The Court charged the Jury, that it was
not a matter of any Importance in this action
whether the land embraced in the lot and
premises described in complaint, was or was
not mineral land was or was not land that
belonged to the United States or to this State,
as it could not be a defence to the injury and
trespass committed by the defendants That
if the Jury found from the plealings and the
evidence, that plaintiff was and had been in
possession and use of the lot enclosed AMI i'm
proved, before the location and possession Of
defendants mining claim. The plaintiff being
first in possession is first in right, and as such
is entitled to verdict, and the defendants
are responsible to him in damages That by
a law of Congress the owners end holders of
lots in mining towns, for the purpose of hab-
itation or cultivation, are protected in the
use and occupation of the same, until the
mineral lands of this State are disposed of by
Congress- and any law Of this State conflict
ing with the same was void and imperative
They were further instructed. that if they
found for the plaintiff and it should appear
from the evidence that defendants committed
the trespass and injary through fraud or gross
negligence or oppression, or after they had
been duly notified and forbidden by plaintiff,
they were not restricted in assessing the dam-
ages to the actual damage to the property
and premises, but that they might assess a
greater amount than such actual damages,
by way Of what is called exemplary damages.
The Jury found for plaintiff in the sum of
ffty-eight dollars damages, and the Court en-
joined the defendants, and all dersons acting
by their authority, from doing further dam
ages or in any way molesting plaintiffs prem
ises.
The Court ruled in this cause that plaintiff
h ,r,oo,-.,.od loco