Commitment to Industrial School San Francisco,

State of California,

City and County of San Francisco,

The people of the state of California, to the superintendent of the industrial school of the city and county of San Francisco: Whereas, an application has been made to me by M. J. Burke, Esq., chief of police, of said city and county, setting forth that John Cox, a boy under the age of eighteen years, whose parents are dead, is leading an idle and dissolute life, and praying for the arrest of said John Cox, and said John Cox having been brought before me, and the matter having been heard, and evidence having been given to my satisfaction, and an order having been made by me that he be committed to the industrial school of the city and county of San Francisco,

You are commanded to receive the said John Cox into your custody, and him safely keep until he be legally discharged. Dated at the city and county of San Francisco, this third day of May, 1859. H. P. COON, Police Judge of the city and county of San Francisco.

CHAPTER XXIX.

MINES, MINING, AND WATER RIGHTS.

I. THE RIGHT OF THE STATE IN THE MINES.

By the English common law, mines of gold and silver were the exclusive property of the crown, and a royal grant of lands did not pass the title to the mines of the precious metals therein. Even the mines discovered upon private lands were claimed by the crown in virtue of its prerogative, together with the right to dig and carry away the minerals, and to do all things necessary to the exercise of that right.'

In this country it seems to have been considered that the several states of the Union, and not the federal government, are, in virtue of their respective sovereignties, entitled to those "royal rights," including the right of eminent domain, and the title to the mines of gold and silver, which by the English common law pertained to the crown. According to this doctrine, the United States has no municipal sovereignty within the limits of the several states.

In some of the states, as in New York, this exclusive and sovereign right of the state has been expressly asserted and defined by statute. In others, where no positive law of the kind existed, the courts have declared it as a common law doctrine. The latter is the case in California, the Supreme Court having laid down the doctrine that the state is entitled to all the rights in mines of gold and silver enjoyed by the crown under the common law; that such mines upon the public lands within this state belong, not to the United States, but to the state of California; and that the United States, in its ownership of the public lands, occupies the same position as a private proprietor, with the exception of an express exemption from state taxation; that the state has the

1 Blackstone, vol. i. p. 295; Collier on Mines, p. 13.

exclusive right to authorize the mines to be worked, to pass laws for their regulation, to license miners, and to affix such terms and conditions as she may deem proper to the freedom of their use.'

II. THE RIGHTS OF MINERS.

The legislation of the state and the adjudications of the courts bearing upon the subject of mining, and based upon the right thus claimed, have given and confirmed the privilege of working the mines of gold and silver upon the public lands to all who desire it, subject to certain conditions and regulations.

With reference to mines of gold and silver found on the lands of private individuals, although the state claims to be the owner of such mines, it has not dedicated the right to work them to its citizens. The privilege conferred extends only to the public lands.'

The nature and extent of the rights enjoyed by those who avail themselves of the permission of the state to prosecute the search for the precious metals upon the public lands within this state, will now be treated of in detail.

1st.-The Right to Mine upon Lands occupied for Grazing or Agricultural Purposes.

It has been the policy, both of the general and state government, to reserve mining lands from settlement for agricultural purposes. The person who settles upon such lands does so subject to the rights of the miners, who may, notwithstanding such prior occupation and possession, proceed to extract the metals which may be found there, and may use all necessary means for that purpose, but with the least injury and damage practicable to the occupying claimant; the spirit and policy of the law being apparently to make the right of the agriculturist to use and enjoy the public lands, subordinate to the right of the miner to search for gold.'

Section first of the act of April, 1852, "presenting the mode of maintaining and defending possessory actions on public lands in this state," clearly gives permission to all persons to work the

1 Hicks

Bell, 8 Cal. R. 219; Stokes v Barrett, 5 Cal. R. 86.

Stokes v. Barrett, 5 Cal. R. 3.

McClintock v. Bryden, 5 Cal. 97; Tartar v. Spring Creek Co., 5 Cal. 895; Burdge v. Underwood, 6 Cal. 45.

mines upon public lands, although they may be in the possession of another for agricultural purposes. The section reads as follows:

"Any person now occupying and settled upon, or who may hereafter occupy or settle upon any of the public lands in this state, for the purpose of cultivating or grazing the same, may commence and maintain any action for interference with, or injuries done to his or her possession of said land, against any person or persons so interfering with or injuring such land or possession provided, that if the lands so occupied and possessed contain mines of any of the precious metals, the possession or claim of the person or persons occupying the same for the purposes aforesaid, shall not preclude the working of such mines by any person or persons desiring so to do, as fully and unreservedly as they might or could do had no possession or claim been made for grazing or agricultural purposes."

And the right to mine for the precious metals carries with it as an incident the right to the use of wood and water upon the public land where gold has been discovered.'

But neither the right to mine nor the incidental rights alluded to have been extended to any except the public lands; and though the Supreme Court has laid down the doctrine that the state is the legitimate owner, as well of the gold and silver found in the lands of private individuals as of that contained in the public domain, it has not decided in favor of the right of the citizen to seek for gold upon private lands. On the contrary, it declared in the case of Stokes vs. Barrett that, "to authorize an invasion of private property, in order to enjoy a public franchise, would require more specific legislation than had yet been resorted to."

Under the statutes and judicial decisions above cited, the occupant of lands held and used for agricultural purposes would seem to be left without adequate protection against persons who might enter upon the premises so occupied, either with the bona fide intention of searching thereon for the precious metals, or upon the pretence of such intention. To obviate evils which might possibly grow out of this state of things, the act of April 25,

1 Tartar v. Spring Creek Mining Co. 5 Cal. 395.

1855, "to protect the owners of growing crops, buildings and other improvements, in the mining districts of this state," provides as follows:

1. No person shall, for mining purposes, destroy or injure any growing crops of grain or garden vegetables, growing upon the mineral lands of this state, nor undermine or injure any house, building, improvement or fruit-trees standing upon mineral lands, and the property of another, except as hereinafter provided.

2. Whenever any person, for mining purposes, shall desire to occupy or use any mineral lands of this state, then occupied by such growing crops of grain, garden vegetables, fruit-trees, houses, buildings or other improvements, the property of another, such person shall first give bond to the owner of the growing crop, building, fruit-trees or other improvement, to be approved by a justice of the peace of the township, with two or more sufficient sureties, in a sum to be fixed by three disinterested citizens, householders of the township, one to be selected by the obligor, one by the obligee, and one by a justice of the peace of the township. Conditioned that the obligor shall pay to the obligee any and all damages which the obligee may sustain in consequence of the destruction by the obligor, or those in his employ, of the growing crops, fruit-trees, improvements or buildings of the obligee; provided, that the word improvements in this act, shall be construed to mean any superstructure on said farm, ranch or garden, and nothing more.

3. If any person or persons shall violate the provisions of the first and second sections of this act, he or they shall be deemed guilty of a misdemeanor; and on conviction thereof, before any court of competent jurisdiction, shall be fined in a sum not exceeding two hundred dollars, nor less than fifty dollars, or by imprisonment in the county jail of said county not exceeding three months, either or both, at the discretion of the court; provided, nothing in this act shall prevent miners from working any mineral lands in the state, after the growing crops on the same are harvested.

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