The Trinity times., 1855-03-17

upon mineral lands, who claims the same for
agricultural purposes. The plaintiff below
has then acquired no right to lis settlement
from the General Government.
The State of California having an t.rdoubt-
ed right to pass laws regulating the manner
OF defending and possessing the public lands
within her borders, by virtue OF her police
powers, if she has no higher right, has pro-
ceeded to define what lands may be possessed
for agricultural purposes, in the act of April
ll;h, 1850, and the act of April Doth, 1850.
(See Compiled Laws, $3.50. And BY the
provisions of these laws, she expressly excerpts
from their operation, and refuses to protect,
any location upon lands containing any of the
precious metals. The act OF April 18th,
1850, passed "for the better regulation of
the mines, and the government of foreign
miners, seems to give, by necessary mplica.
ton, whatever right the State might have in
the mineral in the soil, and the right to
mine, to all native or Natural born citizens of
the United States, who may wish to toll IN
the gold pacers.
The act of 1851. regulating proceedings in
civil cases-scction G2l defining that in ac-
tious respecting mining claims, proof shall be
admitted Of the customs, usaQcs or regula-
tons established or in force at the bar or
diggngs' embracing such clam'-would
seem to imply a permission upon the part Of
the State 10 the miner. TO seek wherever he
chose in the gold bearing districts for the
precious metals. and would seem TO extend to
him whatever right she might have to the
mineral when found. but the inquiry would
naturally arise here, as 10 what right the
plaintiff can have in maintaining possession
Of the farm he claims, situate upon mining
4 lands, to the exclusion of the miners, whilst
lie is in good faith searehing for gold
The policy Of the General and State Gov
ernmcnis has been to reserve these lands
from settlement for agricultural purposes
~ the legislation OF both Governments
bearing upon this question, denies the claim
Of The settler for agricultural purposes upon
mineral lands, and instead of denying to the
miner The privilege Of extracting gold wher-
ever found, the one by its tac:t permission,
and the other by the Uniform tendency and
implication Of its laws, has given him that
privilege. and allowed him to define and re-
eulate his location in the mines, by the local
customs and laws prevailing at the place
where he is following his mining avocaton.
It has been couten3ed in this cause, that
the location Of the plaintiff for agricultural
purposes upon the lands in dispute. had taken
place prior to any legislation upon the subject
Of mining lands, and tlat, therefore, these
laws, passed with reference to tie business Of
mining, can have no effect in denying the
right TO his possession. because they would
be retroactive in their operation. cannot
perceive the fotce Of this objection. The
plaintiff never had from the time of lis loca.
ton, any right, derived from either Govern
ment, to the possession Of mineral lands en-
closed by him, to the exclusion OF miners
who were, in good Elth, proceeding to ex
tract the gold from the earth.
The plaintiff is in possession without show
ing right Of property; and relies upon his
mere possession, by buildings and enclosures,
for his right to recover in this action. A bare
prior possession Of agricultural lands. which
were public lands, has been held sufficient in
! some of the new States and Territories Of the
4 Union to sustain cjectment as against per
son invading that possession.
The wants end interests Of a country have
always had their due weight upon courts in
applying principles Of law which should shape
its condition, and rules must be relaxed, the
enforcement of which would be entirely un-
suited to the interests Of the people they are
to govern. In the new agricultural States,
it was the policy Of the government, as well
as Of the people, that the large and prolific
waste lands should be early settled, cleared,
and brought into "A state for its cultivation.
The actual settler upon those lands over
much of the territory Of the Union, was al
lowed the right Of rre-emption, and the gov
ernment recognized in him, by virtue Of bis
settlement, species Of property in the pub
lie lands. 1t was necessary for the encOur-
agemcnt Of actual settlers, that without legal
title to their property, and without actual en-
closures, they should be able to remove any
person entering upon lands claimed by them.
But how is it with the case before US
The plaintiff settles upon and claims mineral
lands for purposes Of agriculture, 10 the ex-
clusion OF miners, against the policy of both
the General and State Governments, without
right. and claims protection in his possession
merely because he was first upon the grounds;
that he had fenced in a !arm. and was Occu-
pied in the business Of raising crops. The
maxim Of the law grid p,tor est IL tenp1re
pri9r est IN jWre," cannot be applied IN pro-
tection OF person who settles upon lands re-
served from settlement by the policy Of the
law, as against one entering for a purpose
encouraged wherever mineral lands may be
found.
Of party relying upon mere prior posses
sion, the defendant in the action is treated as
an intruder and wrong docr who invades
without right in the premises. The defend
ants below were in the exercise Of q peaceable
and lawful calling, and in their search for
gold in the progress OF their works they dis
covered that the plaintiff had enclosed ground
in mining district, which they believed 10
be valuable for gold mining purposes, and
upon which they entered for the purpose Of
carrying on their business Of extracting gold
This was not On mining districjJ the act Of
ntruders or wrong-docrs. but the act Of per-
sons following a lawful aud honorable pursuit
upon ground reserved to such purposes by
both the policy and laws Of this StAte, and the
evident policy Of the general government Of
the Unitcd States.
If the doctrine were otherwise, it is plain
10 perceive that persons without any right
bet that Of possession, could, under the pre-
tence Of agriculture, invade the mineral dis
tllcfs q tho E+.4e "A t,,. a. a,.f,,