The Empire County argus., 1855-09-22

Town LoTs. The owners Of town lots will, we
doubt not, read the following decision of the Su
preme Court, rendered Sept. Is, with satisfaction
We extract from the State Journal:
Geo Fitzgerald vs. VIM. L. Urton ct al. This
was an action in the court below to restrain the
defendants from the commission of nuisance by
reason of digging ditch and mining in the plain
tiffs enclosure.
The facts are substantially, that the plaintiff was
in possession of small town lot in the town Of
Bidwcl on which he had erected a house used as
hotel; that the lot was enclosed by 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 in
convenienced him in his business and threatened if
not restrained to entirely ruin his possession
Several grounds of error are assigned by the ap
peants. none Of which are well taken
First, it is supposed 10y the appellants that the
allegation of possession and title IN the plaintiff
was insufficient to enable him to maintain the ac-
ton, and that he ought to lave shown that his pos
session 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 pooocooloH do uStiioo d ihcic
respasser, and the fact that the land is the public
domain Of the United States, land containing
the precious minerals, will afford authority to
strangers third persons entering upon his posses
sion except in the cases allowed by statute These
cases are first, when the land is used for grazing
and second, for agricultural purposes
The Legislature of our State, in the wise exercise
Of its discretion, has proper to foster and pro-
tect the mining interest paramount to all others
In permitting persons, however, to go upon public
lands occupied by others, for the purpose of min
ing, it has legalzed what would otherwise have
been trespass, and the act can not be extended
by implication to a class of citizens not specially
provided for: neither do we think that the occupa-
ton of the lot by the present plaintiff for the pur
pose of hotel keeping is inconsistent with the poll
cy of the State with regard to mining claims.
The interests and wants of the mining commu-
mites demand that some facilities and accommoda-
tons should be afforded to the business of mining
and that persons 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 their possession upon the specious
pretext of mining,
From an examination of the facts it will be OBJ
served that this case differs materially from the
case of AlcClintock VS.. Dryden ct al. and other
cases hitherto decided by us.
The instructions of the court below are substan-
tally correct, and error appearing to us, the
judgment is affirmed with costs
MURRAY, G.. j.
| concur, HEYDENFELDT j.