Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-03
DEBRIS.
FIfTY.sEcoED DAY OF THE sLICKENs
CASE IN COURT.
Continuation Of the Argument Before Judge
Temple-The Theory Of the De-
fense Clearly Set Forth

/ Couiluuatlou VI tue arg ument BEFORE JuO &c
Temple-rhe Theory of the De-
| Tense Clearly Set Forth
| The argument in the case Of the People VS..
The Gold Run Mining and Ditch Company
was resumed before Judge Temple at $3.50
A.. NJ, yesterday, Mr.. Wilson for the defend.
ant continuing his remarks, synopsis of
| which is given;
We have now reached the period when, in
California (April 13. 1850, the common law
of England was adopted. The common law
includes both principles rules and usages for
the protection of the person and property
that does not rest upon express declaration of
statute, etc. (Ksnt's Commentaries The
adoption OF the common law here was only
az adoption of so much of it as was adapted
to our circumstances and condition, and in
other respects it was modified by statutes Of
the nation and State. Bcuvier says the COM
mon law in the United States is not the same
always, as in England. Il is here only such
as is adapted to our conditions, etc. In s
Peters, 65S, 1t was held to the same effect
that there can be no common law of the
United States, as each State has its own Gus.
toms and usages. Tie common law can only
be made
THE LAW OF THE LAND
By adoption by the Legislatures of the
States. The common law as it existed in
England has never prevailed in all its force
in the States of the United States, but ONLY
to the extent needed by the conditions of the
States go Wend., 159. s CAL, Crandall vs.
Woods, Hill VS.. King, and series of other
cases, Cooley on Constitutional Limitations,
etc., So the common law, as adopted here in
1850, did not repeal the customs and usages
that prevailed, for the conditions out of which
they .prang continued. So, too, the Courts
and Legislatures recognized, after 1850, the
customs and usages concerning mining, water
use, etc that prevailed prior to 1850. The
Supreme Court has held that these customs
embraced general usages, that were not put
into LEGAL or district regulations. But 70
Wheaton, 5S5, it has been recognized that
custom and usage modify the common law
ITSELF So the adoption OF the common law did
not change the customs and usages concerning
mining that is, we have had California
common law On that subject. that grew up
with the early settlement of the State. In
M assachusetts it has been held that usages
growing cut Of the peculiar conditions pre-
vailing in Massachusetts in early days, grew
into the force of law, and sprapg from un-
written customs, etc. Q3 Metcalf), and be-
came the common law of Massachusetts,. So
here we have California common law, that
grew up with the State. and out of its early
condition. There is a distinction between
the unwrittsn and the written district laws,
and the former have become the law of the
State (42 Cal. }, being such general customs as
pre-, allied. In 5th California the Supreme
Court refers to the early wants and necessities
of the settlers, out Of which grew the custom
and policy of the State. The Court recog.
nized them without any specific recognition
by the Legislature, and that body likewise
recognized them without specific expression
afirmatively Is CAL, 334). There the Su-
preme Court expressly determined and recog.
nized the right to divert and use the water,
with all the results of deterioration in guam
tity and Quality. That decision was made in
1857, now over twenty.four years ago. So,
in 1858. it was again held by the Court that
RIGHT TO APPROPRIATE WATER
Has been too long recognized to be doubted.
The Legislature of the State, it was said,
gave general license to take and use the wa
ter, and has recognized the right as fran
chise or Basement. So, too, in 6lCal. 1855,
the Court took judicial notice Of the condition
of the State and Of the early history, and of
the customs and rights growing therefrom as
to mining and as to the use Of water, etc. The
Government has looked on quietly on
these apprep iations, and encouraged them
expressly in some cases. So in the construc-
ton of fumes and bitches. and the tapping
of all the important streams by them, and
these aave baen referred TO bT the Llegisla-
ture and consented to, and made a source OF
revenue to the State. Appropriation Of
water ard diversion, in opposition to the
common law, thus grew to be the common
law of California, and carried with it and
authorized all the necessary things and acts
to the successful carrying on of mining.
In Cal, 325, the subject is discussed,
and the Court comments on the joint action
of the State and Federal Governments in
this matter, and the customs that had been
recognized, and under which rights had
become vested which the Government must
recognize or else violate all the principles
of Justice So, too, in 5 Oregon, the
Supreme Court there also considers these
rights, and the obligations on the Govern
ments to sustain the same, and by which the
Govern Il ents are prohibited from interfering
with them, they being binding on the con-
science of the Government. So all the legis-
lation of Congress as to mining was based on
the pre-existing rights. and was only intended
to more fully carry out the force Of the same.
Congress never obliged
THE EXPLORER FOR METALS
To become the owner of the land, but gave
license to enter on the lands and work for
minerals. So in 3 Wallace, 104, Chief Justice
Chase commented on these principles and
affirmed them. SO in 20 Wallace, $40, the
same Court, by Judge Field, said. as to the
use of water for mining purposes, the common
law was found early to be ipapplicable to the
situation, either as to the use of the water or
IL of naria Tr
Wallace the same propositions are rxAfirmed
When in 1866 Congress came to legslate on
the subject, it found the decisions Of the
Courts holding these men had vested rights
and that the conscience of the Government
was bound, and it was recognized that it had
incurred obligations it must sustain and full
FL, though it had ths power az the sovereign
to wipe them cut aud disregard them utterly.
These existing rights went to the full extent
of the customs and usages of the land,
including the use of the water and all the acts
necessary TO its full use for mining. In 101
y. S. Reps the Court held that where rights
to the use of water had grown out of the
necessities Of the situation, Congress had re-
cognizsd such rights. The defendant there
was the Natoma Water Company at Folsom,
and though it had no patent from the Gov.
ernment, its appropriation Of the water and
construction of bitches were held to give it a
vested r'gnl suD0clenL TO b2H6 the lanQS OUT
of the railroad grants, and these rights had
grown up prior to 1866. So out of the Cali
forpia system rights against the Government
itself grew up out of the customs of
the country. Then it was held that the Act
of 1866 was voluntary recognition of such
rights. The Government by that Act ex.
pressly ratified the easement of these ditch
companies. So. too, the Stat July, 1870,
and May 10, 1872. The case IL Otto, 275
was expressly approved by the Supreme
Court, California Il Pacific Coast Law Jour.
nal, AL 81 and il was held that the lcc,l
customs and rsagas of the country as to min.
ing aud water rights, etc., had been recog-
nizsd BY Congress, and all pre-existing rights
Hereunder. But this is clearer, for by Sec
tion 5, Act 1866, Congress reserved its right
to regulate these rights and easements rela.
tive to
THE USE OF WATER,
Yielding for the time to the State to set up
system for their government, rules for
working mines. their drainage and other
means necessary to the complete development
of the mines. Congress could not have been
more explicit ON the subject. Now, it fol.
lows that customs and usages have become
part of the common law of the State that
such customs and usages have long prevailed,