Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-08

divert it. is one of user, and the appropriation
gives the title sgainst all the world hut the
United States. That is exactly cur view. In
AZ Cal, Judge Temple said some mining Gus
toms may be said to have become a part of
tina common law of the lard. In Is CAL, S.,
Clark VS.. Duyal, miner invaded 8 recog-
nized possession of public land and the Court
held the miner may enter and dig and do all
that is indispensable to reasonable use for
mining, and that water is one of the inherit
ances of the freehold he may USE Il Green
leaf, 405. cited as TO cases depending on Gus
toms and the showing of the same to exist BIZ
Judgment, ct SEQ Now as to
THE FEDERAL GOVERNMENT.
What has it been doing about mining !?
From the FIRST it knew what was going on in
California. He who may prohibit while he
may prohibits, commands the thing to be
doLe," is the maxim. 1t first withdrew the
mineral lands from entry. AID so it accepted
the policy and government of the State ovar
them by leaving them alone. The Act of
1866 followed as to water rig hts, and approved
the local customs and regulations in Califor.
MIA. 1t was the true owner, and it came and
gave just what the State had by pre-existing
law and custom exercised power over, and in
those words ACKNOWLEDGED and confirmed
the vested rights" hereunder. Counsel read
HUN bhC dCOolc eu tuc Diu III SOQRIes6, anu
the speeches of Senator Stewart on tie oues.
ton. Counsel then INDUCED in some specu-
lations IS to what might have been the polit.
ical condition of California now and during
recent years. had not gold been discovered
and been during recent years dug out
If her mountains. By gold discovery Cali.
fornia escaped thu designs Of the British
Cabinet, the schemes of the Mormons, aud
fell into the arms of the Union. By Act of
Congress California is given the right, in the
absence Of enactments by Congress, to pass
laws regulating and providing easements,
drainage and other necessary means for the
d ;velopment of the mines.
THE COURTS ARE NOT TO DLPART
From the well settled line of judicial de.
c;sions now, because the agricultural interest
has risen from its low estate and has come
into conflict with what was once the domi-
naut interest The issue is one for the politi-
cal arm Of the Government to consider, not
the Courts. Congress has already measures
before it looking to the correction of the evils
complained of here. What has the Supreme
Court of the United States said meanwhile
l cannot have a usufructory right in that
which another has the right to appropriate.
TIE two things are impossible together. The
riparian right is that water shall run where it
ought to run and is accustomed to run. The
law of appropriation, however, comes in
aud impresses its custom en- the system
of country, and both are hence founded on
habit and custom. Now, Judge Rhodes says,
let the quartz mines go on, they will foul the
water some. but the people can stand it. If
the plaintiffs doctrine is good at all, what
right have the quartz mines to foul the water
az all. In 1874, 10 Basey vs.. Gallagher, 20
Wall, the question was the legality of the
Act of Congress of 1866. and the Court said
it was valid to recognize the customs that
have crown up as to the use of water, accord
ing to the necessities ofthe ceSntry. and these
are determined by customary,law. local regn-
lation and the decisions Of the Courts of
State. That is perfectly clear. In Broder
Vs. Natoma Company. 10I W S, 204, where
Broder attacked a ditch TO abate it. and
claimed part of his title to have vested before
1866; but the Court refused u consider that,
saying it made no difference, and held it to
be an
ESTABLISHED DOCTRINE
That the taking Of water for mining and irri-
eating bitches is right the Government is
bound to protect in good conscience, and be-
clme 80 bound before 1866, and the act was
a voluntary Acknowledgements of a pre-existing
right. Thus the legislative, executive and
Judicial branches of both State and Federal
Governments have moved in parallel lines to
protect the vested and pre- existing rights of
the miners, who had dug in the bowels Of the
earth ana faced danger and death to develop
the mineral wealth of the country.
Adjourned to $50 a. NJ. to day.