Butte record., 1855-09-22
lnportant DeeAlon.

Among other decisions rendered by
the Supreme Court on Saturday last,
we find the following which will be read
with interest BY the mining popuIa sion,
and by our citizens generally:
Geo. Fitzgerald, VS.. VIM. L. Urton,
ct al This was an action in the Court
below to restrain the defenda nts from the
commission of nuisance by reason of
digging ditch and mining in the plain
tlf's enclosure.
The facts are substantially, that the
plaintiff was in possession of a small town
lot in the town of Bidwell, on which be
had erected house used as hotel /;
that the lot was enclosed by a substantial
fence and used as poultry and wood
yard and for other purposes necessary to
carry on the business of hotel keeping :;
that the plaintiff had for long time
been in the quiet use and possession of
said premises and that the defendants
claiming right as miners, entered upon
the lot and BY digging and sluicing had
greatly damaged the plaintiff and incon-
venienced him in his business and threat
ened if not restrained to entirely ruin
his possession.
Several grounds of error are assigned
by the appellants, none Of which are
we'll taken.
First, it is supposed by the appellants
that the allegation of possession and title
in the plaintiff was sufficient TO enable
him to maintain the action, and that he
ought TO have shown that his possession
was consistent with the statute of this
State regulating pre-emption claims, and
that he had complied with the provisions
of the act. Such is not the case. The
occupant of land may, in every case,
rely upon his possession as against
mere trespasser, and the fact that the
land is the public domain of the United
States, or land containing the precious
minerals, will afford no authority to
strangers Or third persons entering upon
his possessions, except in the cases al
lowed by statute. These cases are !:
first, when the land is used for grazing :;
and second. for agricultural purposes.
I The Legislature Of our State, in the
wise exercise Of its discretion, has seen
proper to foster and protect the mining
interest as paramount TO all oth'rs. In
permitting persons, however, to e" upon
public lands occupied by others, for the
purpose Of mining, it has legalized what
would otherwise have been a trespass,
and the act cannot be extended by i'm
plication to class of citizens not speci-
ally provided for neither do we think
that the occupation of the lot by the pre-
sent plaintiff, for the purpose of hotel
keeping, is inconsistent with the policy
OF the State with regard to mining claims.
The interests and wants of the mining
communities demand that some facilities
and accommodations should be afforded
to the business of mining, and that per
sons settled in good faith upon lots in the
mining towns, and carrying on business,
should be reasonably protected and not
left at the mercy of every malicious or
irresponsible party who may choose to
invade thcil possession upon the spccious
pretext of mining
From an examination of the facts, it
will be observed that this case differs
materially from the case of McClintock
VS. Dryden ct al and other cases hith-
erto decided by US.
The instructions of the Court below
arc substantially correct, and no error
appearing to us, the judgment is affirmed
with costs.
MURRAY, G. J.
concur, HEYDENrELDT, j