Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-03

land and condemn the same for mining, etc
OF course, subsequently that was repealed
But it is said the action of the General Gov
ernmept applied only to the public lands
Wen admit that as to them Congress dit
consent and act TO The full extent in fosterin.
mining, and conferred all these powers. civ
ing the easements over the public lands fo
hundreds of miles to carry the waters t.
points not destined by nature. But did i
not go farther? Certainly it went SO far Al
to bar complaint by the Government, as tx
injury to the public lands. 1t went to tht
extent of consenting to injury to the Gen
eral Government, for it saw good to come ir
the end.
IT ALLOWED THE MINER
To denude the land of its treasure, and tha,
without entry or payment of single cent
to take these streams and divert them to the
injury of the public lands, to food the lands
and cast debris upon them. No one has ever
doubted this being so. The Government saw
its reward in the general prosperity of the
country, the supply of the circulating medi
um, and the good gold had done in all such
cases, and must do again. But bill by an
Attorney. General Of the United States to en-
join miners from flooding public lands would
be laughed at. The Secretary of the Interior,
the Attorney General of the United States,
have known of these injuries, but have never
dreamed of interposing the strong arm of the
ers On the forests of the Government. The
right to do an act implies the right to use all
the necessary means to do the act, and con-
templates all the ordinary and natural conse.
quences of the act. The Government as.
sented to these consequences by its permission
to do the acts. That is not only law. but
coyNoN SENSE
"Wtoever g-ai t thing is SUI p L ed to grant
that without which the grant would
be of no avail" is the maxim OF
the law. In the grant of the use of
a thing, everything is granted necessary
to the full enjoyment thereof several cases
cited). The exercise of the right is not con-
fined to the methods in vogus when the right
was granted to mine; the miners may avail
of all the improved methods, and keep pace
with the advance of the science. These are
the incidents of the general grant (several
cases cited). In Taunton Lord Mansfield
held to like extent. Necessary is not to
be construed to mean absolute physical ne
css sities in the use of grant, but all conven.
lent things also. The prior grantee of the
tprior to Act of 1866 is equally
bound with the Government by the grant of
these rights. Even in regard to Mexican
grants the contirmee is. bound by the same
principle. 1t is the inexorable logic that fol-
Court Of the United States. There
The lands injured are of Mexican
grants. AS to individuals. it might be a
private, but not public nuisance, except
number are injured. So we
might have one five. eight or tea Mexican
grantees injured, but one could not complain
that this was public nuisance. In 10 Cal,
269, and cases cited, il is said ell grants had
10 be presented to the Land Commission, or
Else the lands were treated as public lands
Il is not shown here that the lands injured
ire Mexican grants, aud therefore they are
20 be treated as being public lands. The
grantee of Mexican grant must take the
,ame with all such conditions and limitations
IS the General Government may determine
lpon. The Government may annex any con-
3itions to the confirmation, if an imperfect
yraut-and we have never had any such
hing as q perfect grant, as all had to pass
through governmental action to be confirmed.
50 far, then, as the lands are concerned, the
Government of the United States has con-
,ented to their use, the use Of the water, and
al things necessary to the rights granted, and
al persons claiming under the United States
IRE equally bound
THE SACRAMENTO RIVER.
,he effect of mining op ths Sacramento river
IT d consented to it, (95 U. s., 454f Wal,
7I3; Wal, 35.; 2 Peters, 245; 8 Wheat, }
In 1866 Congress recognized these water
tights, with full knowledge of the flood of
1867. The General Government controls the
streams Of the State, and the State can only
act where the General Government is silent,
and if the General Government has chosen to
dedicate the streams TO the use CT mining, it
q not for the State Government to interfere.
But the State Government has not interfered
With the policy Of the Federal Government,
out has concurred in it, and the General
took up its linz OF policy be-
cause Of the action Of the State in the first
Instance, and the State of California has, by
avery act possible to it,
DEDICATED THE STREAMS
)i The State to the purposes of mining; has
10 done by its legislation and through its
Courts. The principle OF estoppal applies to
he State. just as it does TO the individual, in
,r cut of Court. It stands on the same
broad platform, as su:tor in Court,
IS does any citizep, and is subject
% the same rules. They chow how the mouth
If the State is stopped. and she cannot
W. ,
lone so long age. See Pick. 224; Bgelow o,
Estoppsl; Peters 1-S7; 4 Penn, % Ala,
J N. H., Binney, 221, where this principle
If estoppel as to State is recognized. &c.
200, in ii Otto, 244 Justice Miller enunciates
It. So in Z Cal, 727, and Peters. 81 IS.
and cases cite there. Also 16 Cal %; Is
Cal. Cos.
No particular terms are necessary to con-
stitute grant by the State leases cited). Ii
The State was private individual, and acted
toward these miaers as has been done here in
her name. would she not be estopped at once
The office of water IN mining was most mani
fest at the earliest day, and has been fully re-
cognized and known ever since. The State
knew it was custom and usa to wash the earth
into the streams, to be carlisd away by grayi-
.ation. All the local rules. in their narro west
asDeot, recognized that there could be no
mining without water. 1t WAS
THE sUBsTRATUM AND BASIS
Of all mining, and the whole action of the
State and Federal Governments was on the
basis of the use Of water in mining. That
mining is public use, and the appropriation
can exist. l Federal Reports, 145, is in
point and q striking case. 1t was
Wisconsin case, and referred to impedi-
mems in the Chippewa river by log
ging. These immense RATS ara sent down in
the vast lumberipg int rests Of ths State, fos-
tered by the policy of the State. The ques-
zion was as to the power of the State over the
stream that the numbering business had de-
,troyed for all the purposes of navigation by
vessels. So, if the Sacramento river has had
It's navigation impaired, on the State and
Federal Governments
REST THE RESPONSIBILITY,