The Georgetown news., 1855-09-27
important Decision.

Important Decision.
The case is that of George Fitegerau VS..
Nm. L. UTtOa ct al, in which the Court
rules that persons settling in good faith
upon lots in the mining towns and carrying
on business" are protected by the law a.
gainst the encroachments bv others upon
their lots, even for mining purposes This
decision settles rights which have long been
in doubt, and which the Legislature has in
vain es8ayed to define by legislation. I'm
less overruled by future legislation, the de-
! ciSion Of the Supreme Court stands as the
law of the State, and the rule by which
rights OF the character named are to be de-
fined.
The opinion we considered Of so much
Importance in the mining counties, that we
republish it: Union.
George Fitzgerald VS.. Wym. L. Triton ct
aL-This was an action in the Court below
to restrain the defendants from the COM
mission Of nuisance by reason Of digging
a ditch and mining in the plaintiff s enclo-
sure.
The facts are substantially that the plain
tiff was in possession Of a small lot in the
town Of Bidwell, on which he had erected a
house used as hotel; that the lot was en-
closed by substantial fence and used as a
poultry and wood yard, and for other pur-
poses necessary to carry on the business of
hotel keeping. That the plaintiff had for a
long time been in the quiet use and possess
ion CT said premises and that the defendants
claiming right as miners entered upon the
lot, and by digging and sluicing had great
ly damaged the plaintiff and Inconvenience
him IN his business, and threatened, if not
restrained, to entirely ruin his possession.
Several grounds Of error are assigned by
the appellants, none Of which are well ta-
ken
First, it is supposed by the appellants
that the allegation of possession and title
IN the plaintiff, was insufficient 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 pre-
cious minerals, will afford no authority to
strangers or third persons entering upon his
possession, except in the cases allowed bv
statute. These cases are, first, where the
land is used for grazing; and second for ag-
ricultural purposes.
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 others. In permitting
persons, however, to go upon public lands
occupied by others for the purpose of min
ing, it has legalizcd what would otherwise
have been a tresspass, and the act cannot
be extended by implication to a class of ca
ses not specially provided for; neither do we
think that the occupation of the lot by the
present plaintiff for the purpose Of hotel
keeping is inconsistent with tthe 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 ofmining, and that persons set
tied 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 10 INVADE tn6lf pos
session upon the specious pretext Of mining
From an examination of the facts it
will be observed that this case differs mate
rally from the case of McClintock VS.. Bry-
den ct al, and other eases heretofore deci-
ded by US. The instructions of the Court
below are substantially correct, and no er-
ror appearing to us, the Judgment is affirm
ed with costs. MURRAY, G. J.
| concur: HEYDENFELDT, J.