Oroville daily Butte record., 1857-12-14
For the Record.

DhAh C1h-5n TtduibH yOuT paper tplS
morning noticed an article headed "6rants
Of Mineral Lands , Vow Cir, with your per-
mission | will say something more on the
same subject. propose to disscct the mer-
its of Judge Williams Injunction which am
informed contains two orders one not to run
water wheel which conveys water to the
miners, and the other to remove said wheel
and sleiceboxes frem plaintiffs land. think
l hazard nothing in saying that every legal
mind at this bar, or any other in this State, ),
must pronounce this a most extraordiary
proceeding, for the following reasons
lst. In the early history of injnnctions tho
Courts refused absolutely to grant them to
restrain trespass ia any form. But the
more modern and present doctrine seems to
be, that injunctions will lie TO restrain n
trespass which 10 nearly allied to waste /:
1.-The ancient doctrine OF the Court no doubt
was, not to interfere by injunction in cases
of trespass. but to leave the party to his
legal remedy. But the practice Of the Court
is now more liberal; yet, in eases Of tres
pass, it expects a strong case of destruction
/
| [Willard's Equity Jurisprudence, page 3S2
| Aagain, "When the right of II party is
doubtful, the Court will not grant an in.
junction to prevent an illegal interference
with the same until the right is established
at law. To warrant an injunction to pre-
vent mere trespass, the party invoking
the aid Of the Court must have been in the
previous undisturbed enjoyment Of the pro-
| perty under claim of right, or relief at law
must be uDattanable, from the irresponsi-
bility of the defendant or otherwise. 1t re-
quires strong case to restrain n trespass
by party in possession claiming by an ad-
verse title."--[Same author, pages 382-31
Now, sir, submit to the judgment of the
merest tyro in law, whether the raising
water out of Feather River by means of a
wheel, and running it in sluice. boxes over
plaintiff 8 land Ca fact which defendant by
no means admits) comes within any of the
foregoing rules. Instead of the running of
water over mans land beingG greet or
irrePdrabie injuru, it is, at least in the dry
season. great benefit to the land.
%. | propose in this division to review
the doctrine of restraining the running of
water over another's land in connection
with that of mining on another's land for
the precious metals. The Supreme Court,
in the Merced Mining Company os. John C
Fremont and others, quotes this language
from the decision in the case of Hicks Us.
Bell l." In the case of Hicks rs. Bell, CAL
Rep. 219, this Court decided that in refer
ence to the ownership of the public lands,
the United States only occupied the position
of any pripafe proprietor, with the excep.
tion Of an express exemption from taxation
The mines Of gold and silver on the public
lands are as much the property Of this
State, by virtue of her sovereignty, as are
similar mines an the idndS Of pTiudte citi-
Gems She has, therefore the sole right TO
authorize them to be worked to pass laws
for their regulation to license miners, and
to atfix such terms and conditions as she
may deem proper to the freedom of their
use.' The doctrines of this case" say they,
ARE expressly affirmed in the case of
Stokes as. Barrett & Co, s Cal Rep 80.
In the case of McClintock vs Dryden and
others, s Cal. Rep 81, it was held "that
the act of April 18th, 1850, passed for the
better regulation of the mines, seems to give
by necessary implication, whatever right
the State might have in the minerals in the
soil, and the right to mine to all native born
or naturaliSed citizens of the United States
who may wish to toll in the gold placers"
Now, sir, this language was quoted by the
Supreme Court, referring to the case of
Hicks rs. Bell to support their opinion in
the case of the MERGED Mining Company as.
John {. Fremont and others In the latter
case "A perpetual injunction was issued ana
sustained by miners in possession against
Fremont and others, claiming under para
mount title. The Supreme Court. in this
latter case, have expressly affirmed their
opinion in the case of Hicks rs. Bell, and all
the other cases on the same subject. and
that, too, as recent as april, 1867. In the
Merced Mining Company cs. Fremont, the
Court say in summing up, If these views |
be correct, the owner OF a mining claim has,
in practical effect. good vested title to the
property, and should be so treated until his |
title is Invested by the exercise of the high.
or right of the superior proprietor: his |
rights and remedies, in the mean time, are |
not trammeled by the consideration that
the higher right to reclaim the property ex-
lists in another which right may possibly, |
but will not probably be exercised" the
superior proprietor being the State. With
out quoting further, Z come to these eonclu-
sions
lst That'under the rules governing the |
issuance of injunctions, an injunction will !
not lie to restrain defendant, Being IA mere
trespasser, from running water in sluicc-
boxes over another's land, unless it is doing !,
great or irreparabIe injury.
"a That under the decisions of the Su
preme Court of this State referred to above,
no injunction will lie to restrain a miner
from working mining claim in this State,
.,bn 4. L.,