The Trinity journal., 1856-12-27
Important Decision.-The Rights of Water
COMPANIES

OF constructing canals and digging bitches or ra-
ther preventing works of this kind from going on
was the uncertainty fluctuations and doubtful Sc
curity to be had in such operations. Capitalists
in San Francisco have never doubted the profit
and utility of bitches, fumes and canals but the
question and problem which they regarded as diff
fcult to solve, was what the particular rights of
Water Companies were under the Statutes. Cap
ital could always be had in San Francisco if there
never had been any doubts about the security ta-
ken in bitches aud canals, but until these rights
were fully defined by the Supreme Court, parties
felt reluctant to loan money upon such property.
The decision of the Supreme Court in the case
of Conger VS.. Weaver, will be regarded as fully
defining the rights and privileges of Water Com
panies in the manner Of constructing canals,
fumes. &c, and acquiring possession. Speaking
Of the public domain or mineral land and the pc
cular organization of the State Government
and the law of presumption in clearly establish
ing the right to possess if the right to work be
undoubted, the Judges remark
Every Judge is bound to know the history. and
the leading traits which enter into the history of
/ the country where he presides. This we have
held before, and it also is admitted doctrine of
the common law. We must, therefore. know that
this State has large territory that upon its ac-
QUESTION by the United States from the snarse
ness of its population but small comparatiye
proportion of its land had been granted to private
individuals; that the great bulk of it was land of
the government but that little as vet has been
acquired by individuals by purchase that our
citizens have gone upon the public lands contn-
uously from period anterior to the organiza-
tion OF the State government to the present time:
upon these lands they have dug for gold excaya-
ted mineral rock constructed bitches. fumes
and canals for conducting water ; established
farms for cultlvating the earth ; made settle
ments for the grazing of cattle laid off towns
and villages felled trees diverted water cours-
es built mills for saving lumber and grinding
corn and indeed. have done in the varions on
terprizes Of life all that is usual and necessary in
a high condition Of civilized development All
of these are open and notorious facts, charging
with notice Of them, not only the Cour Is who
have to apply the law in reference to them but
also the government Of the United States which
claims TO be the proprietor Of these lands. and
the government Of the State within whose soyer-
eign jurisdiction they exist.
In the face Of these notorious facts the govern
ment of the United States has not attempted to
assert any right of ownership to any Of the large
body Of lands within the mineral region of the
State
The State government has not only looked on
quiescently upon this universal appropriation of
the public domain for all of these purposes, bnt
has stndOusly encouraged them in some nstan-
ces, and recognized them in all,
Now, can il be said with any propriety of rca-
son or common sense, that the parties to these
acts have acquired no rights? If they have ac
quired rights, these rights rest upon the doctrine
of presumption Of a grant rigLt, arising either
from the tacit assent Of the sovereign. or from eX
pressions OF her will in the course of her general
legislation, and indeed from both
Possession gives title only by presumption :;
then, when the possession is shown to be public
land, why may not any one oust the possessor?
why can the latter protect his possession Only
upon the doctrine of presumption for a license
to occupy from the owner will be presumed.
In the case of Hicks vs. Bell, Cal. r., speak
ing OF this States ownership Of her gold mines,
this Court said " In her legi6atiOn upon this
subject, she has established the policy OF permit
ing all who desire it, to work her mines Of gold
and silver with or without conditions
Yet, there was not at that time, nor has there
been since. any act Of the Legislature directly
comforting the privilege of working the mines
except in cases Of foreigners who were required
to obtain and pay for license to do so.
How then was the permission derived? The
answer is evident; her general legislation look
ing at the existence Of this state of things. and
referring 10 it, necessarily presumed lcensc-a
liCciiHc lO MHu CHOse 10 pOSScSS HlIDSClI
of the franchise.
Now, also, ever since the organization of the
State among the other various enterprises which
have been undertaken upon the public lands. is
that which is brought in question in the case be-
fore us the construction of dtches fumes and
canals for the purpose of conducting waters from
their natural channels to supply the wants Of gold
miners
la like manner as in other pursuits, the State
Government has looked on the progress of these
works for the past seven years until their extent
has reached hundreds of miles, and every, impor
tant stream in the State has been tapped by Them
has referred to them in various legislative acts
and has annually made them the subject of revc-
nue. to the State
Every decision made by the Supreme Court.
bearing upon this ground, has gone to establish
the right by priority, but a question arose how
I long time or rather at what time the right of
possession commenced. The Court holds the fol-
! lowing:
! So in the case Of constructing canals under the
| license from the State the survey of the ground,
! planting stakes along the line, giving public no
tce, and actually commencing and diligently
pursuing the work. is much possession as the
nature of the subject will admit, aud forms a
series of acts of ownership which must be cOnclu-
sye of the right
MASS MEETING.-Pursuant to notice, mass