The Placer herald., 1856-01-05
Rights Of Miners upon Public Lands.

Among the decisions OF the supreme Court
of the October term, the following delivered
in the case of y. ". Tartar rs. the Spring
Creek Water and Mining Company - is Of
general interest to Our readers in the mining
districts, as setting forth briefly the course
and policy Of State Legislation as to the pub
lie lands, agricultural and mineral:
The current Of decisions of this Court 20
to establish that the policy Of this State, as
derived from her legislation, is to permit
settlers in all capacities to occupy the public
lands, and by such occupation to acquire the
right Of ndisturbed enjoyment against all
the world bat the true owner.
In evidence Of this, acts have been passed
to protect the possession Of agricultural lands
acquired by mere occupancy; to license min
ers; to provide for the recovery Of mining
claims; recognizing canals and bitches, which
were known to divert the water Of streams
from their natural channels for mining pur-
poses; and others of Ike character. This
policy has been extended equally to all pur-
suits, and no partiality for one over another
has been evinced, except in the single case
where the right Of the agricuturist Is made
to yield to those Of the miner, when gold is
discovered in his land. This exceptional pri-
viege is Of course confined to public lands,
as we held in Stokes rs. Bartlett ct cl., at the
last January term. The policy Of the excep-
ton is obvious. Without it the entire gold
region might have been enclosed in large
tracts, under the pretence Of agricultural and
grazing, and eventually what would have
>ufficed as d rich bounty TO- many Thousands
would be reduced to the proprictorslip Of
few.
Aside from this, the legislation and deri-
s;ons have been uniform in awarding the
right Of peaceable enjoyment to the first oc-
cupant either Of the land or Of anything in
rident to the land. In the case Of Irwin as.
Phillips at the January term. the question
was as to the use of water, and it was de-
cided upon the principle Of prior occupancy.
The appellants insist that, as the State has
granted the franchise of digging gold, all Of
the incidents necessary to that purpose
wood. water, etc,--inust follow. This is
certainly the doctrine Of the common law,
and would be held decisive in this case IN
the absence Of any other right to contradict
it.
But in previous decisions We have shown
that there is nothing sufficiently expressive
warrants an interference with the already
acquired rights Of individna!s except in the
SIM gle case Of agricultural lands. In the case
OF Stokes rs. Barrett, we declared, that "to
authorize the invasion OF private property in
order to enjoy public franchise, would re-
quire more specific legislation than any yet
resorteI to-"
In Irwin as. Phillips, we say, ''that how
ever much the policy Of the State, as indi-
Gated 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 further,
we say, "the miner who selects a piece OF
ground to work, must take it as he finds it,
subject to prior rights, which have an equal
equity on account Of m equal recognition by
the sovereign power"
In the ease of Fitzgerald rs Urton, at the
July term, it appeared that party Of miners
invaded for mining purposes, town lot,
built upon and used as a tavern and stable
ward. The defendants there relied upon the
statute which gives mining privileges upon
public lands in the possession Of Others for
agricultural and grazing purposes In refer
ring to that statute, we said: In permitting
miners, however, to go upon lands occupied
by others it has legalized what would other
wise have been trespass, and the act cannot
be extended by implication to a class OF cases
not specially provided for"
1t results from the consideration we have
given the case that the right to mine for the
precious metals can only be exercised upon
the public lands that although it carries with
it the incidents to the right, such as the use
of wood and water, those Incidents must also
be of the public domain in like manner as
the lands; that aprior appropriation of either
to steady individual purpose, establishes a
quasi private proprietorship which entities
the proprietor to be protected in its quiet en-
ioyment against all the world but the true
owner, except in the single case provided to
the contrary by the statute which have al
ready adyerted to.
Upon the remaining point argued have
only to add that the facts do not make out q
license from the respondent to the appellants.
1t would be strange to take away a partys
rights upon such slight grounds.
Judgment affirmed.
HEYDENFELDT, j.
concur: MURRAY, G. j.
ARREST FOR GRAND LARCENY Captain
Mcdonald followed and arrested a man yes
| ,+ tba p RoI woods who iS fh roa1 wit