The Trinity times., 1855-03-17

upon sGch lands subject to the rights of
miners, who may proceed in good faith to ex
tract any valuable metals there may be found
in the lands SO occupied by the settler, in the
most practicable manner in which they can
be extracted, and with the least injury to the
occupying claimant. The order granting the
Injunction in the court below, is therefore
reversed, with costs.
BRYAN, j.
| concur lIYDENFE1Dr, j.
Irria VS.. Phillips It dl.-The several as
signments of error will not be separately CON
sldeIed, because the whole merit of the case
depends really on Il single question, and upon
that question the case must be decided.
The proposition to be settled, is whether
the owner of canal in the mining regions of
this State, constructed for the purpose ol sup
plying water to miners, has the right to di-
rect the water Of Il stream from It's natural
channel, as against the claims of those who
subsequent to the DIVERSION take up lands
along the banks of the stream for the pur-
pose Of mining. 1t must be promised that it
is admitted on all sides that the mining
claims in controversy, and the lands through
which the stream runs, and through which
main, to which there is no claim Of private
proprietorship, and that the miners have the
right to dig Tor gold on the public lands, WIS
settled by this Court in the case Of Hicks VS.
Bell et al.
case the com lon law doctrine must be in
voked, which prescIlbes that "A water course
must Ne ALLOW cd to flow in its natural channel.
1 - Il. IL
which support that doctrine, it will be found
TO rest upon the fact of the individual rights
Of landed proprletors upon the stream, the
principle being, both at the civil and common
law, that the owner OF lands on the banks of
Il water course, owns to the middle of the
stream, and has the right, in virtue of his
proprietorship, TO the use Of the water in its
pure and natural condition
In tn $ case the lands are the property
either of the State or the United States, and
it is not necessary to decide to which they
belong for the purposes of this case. 1t is
certain that at the common law the diversion
of water courses could only be complained Of
by riparian owners who were deprived of the
use or those claiming directly under them.
Can the appellants assert their present claim
as tenants at will To solve this Question. it
must be kept in mind that Their tendency is
OF their own creation, their r'tenements of their
own selection, and their selection subsequent
in point Of time, to tho diversion of the
stream
They had the right TO mine where they
pleased throughout an extensive region, and
they selected the bank Of stream from
which the water had been already turned for
tic purpose Of supplying .he inineis al ano-
ther point.
Courts are bound TO take notice Of the pol
itcal and social condition OF the country
which they judcialy rule. In this State the
larger part Of the territory consists Of mine
raj lands, nearly the whole Of which is the
property Of the public.
No right on intent Of disposition of these
lands has been shown, either by the United
States or the State governments, and with
the exception of certain State regulations,
very limited in their character, system has
been permitted to grow up by the voluntary
action aud assent Of the population, whose free
and unrestrained occupation OF the mineral
region, has been tacitly assented to by the
one government, and heartily encouraged
by the expressed legislative policy Of the
other.
If there are, as must be admitted, many
things connected with this system which are
crude and undigested, and subject to fuclua-
ton and dispute, there are still some which,
a universal sense Of necessity and propiiety
have so firmly fixed that they have come
to be looked upon as having the force and ef-
feet of res judicatd among these the most
important are the rights Of the miners to be
protected in the possession Of their selected
ocalitics-and the rights Of those who BY
prior appropriation have taken the waters
from their natural beds, and by costly arti-
fetal works have conducted them for miles,
over mountains and ravnes, to supply the
necessities Of gold diggers, and without which
the most important interests Of the mineral
region would remain without developments
So fully recognized have become these rights,
that without any specific legislation confer
ring or confirming them, they are alluded
to and spoken Of in various acts of the legis-
lalurc, in the same manner as if they were
rights which had vested by the most distinct
expression OF the will Of the law-h.ake ers as,
for ms tancc, IN the Revenue Act Canals
and water races are declared to be property
subject to taxation, and this when there was
none other in the State than such as were
devoted to the use Of mining. Section I'd ol
assessment Of the property Of companies and
associations, among others, mentions, dam
or dams, canal or canals, or other works for
mining purposes" This simply goes IT,
prove, what is the purpose Of the argument,
that however much the policy Of the State is
indicated BY her legislation, has conferred the
privilege to work the mines, it has equally
conferred the right to divert the streams from
their natural channels, and as these two
rights stand upon an equal footing, when
they conflict they must be decided by The fact
Of priority upon the maxim Of equity, qLid
pri0r e5t IN tanPoIe, prioT eSt an Jare. The
miner who selects piece OF ground to work
must take it as he finds it, subject 70 prior
rights, which have an equal equity on ac-
count Of an equal recognition from the so We
reign power If it is upon q stream, the wa
ters Of which have not been taken from their
bed, they cannot be taken to his prejudice
but IL they have been already diverted, and
for as high and Legitimate purpose as the
one he seeks to accomplish, he has 10 right
( to com pain--nO right to interfere With the
I r;,r ocoupaffori rf his uei0hhor and r,uet