2d.—The Right to Mine upon Lands already occupied for other than Grazing or Agricultural Purposes.

The act of April 20, 1852, in regard to possessory actions, above cited, authorizes persons to prosecute the search for gold and silver upon public lands occupied by others for “grazing and agricultural purposes.” This is, however the full extent of the

statute, and the occupant of mineral lands for any other than

strictly “grazing and agricultural purposes,” may rely upon his possession against a trespasser, even though the latter enter upon the premises for mining purposes. The act in question being a departure from the policy of the state to permit persons in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner, and its effect being to legalize what would otherwise have been a trespass, it cannot be extended by implication, so as to embrace any cases other than those specially provided for.” Accordingly, persons settled in good faith upon lots in the mining towns, and carrying on business upon them, will be protected in the possession and enjoyment of the premises so occupied, notwithstanding that gold may be discovered thereon, or that the use of said premises may be convenient and desirable to facilitate mining operations carried on in the vicinity. In the case of Fitzgerald vs. Urton, the plaintiff was in possession of a town lot, on which he had erected a house used as a hotel. The lot was enclosed by a substantial fence, and was used as a poultry and wood yard, and for other purposes necessary in carrying on the business of hotel keeping. The plaintiff being in quiet use and possession of the premises, the defendants entered upon the lot for mining purposes, claiming that they had a right so to do as miners, in prosecuting the search for gold, and by digging and sluicing, damaged and inconvenienced the plaintiff in his business, threatening, if their proceedings were not restrained, entirely to deprive him of the benefits of his possession. The action was brought in the District Court, to restrain the defendants from the commission of a nuisance, in digging a

1 Fitzgerald v. Urton, 5 Cal. 308; Tartar v. Spring Creek Co. 5 Cal. 895; Burdge v. Underwood 6 Cal. 45.

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ditch and mining within the plaintiff's enclosure. At the trial, the court charged the jury that, “if the plaintiff had possession and use of the lot claimed and improved, before the location and possession of a mining claim by defendants on said premises, the plaintiff is entitled to hold the same, and the defendants have committed a trespass, and are liable in damages.” Verdict for plaintiff. Upon appeal, the Supreme Court declared these instructions of the court below substantially correct, and affirmed the judgment. In their opinion in this case, the court hold the following language: “We do not think that the occupation of the lot by the present plaintiff for the purpose of hotel keeping, is inconsistent with the policy of the state with regard to mining claims. The interests and wants of the mining communities demand, that some facilities and accommodations should be afforded to the business of mining, and that persons settled in good faith upon lots in the mining towns, and carrying on business, should be reasonably protected, and not left at the mercy of any malicious or irresponsible party who may choose to invade their possession upon the specious pretext of mining.” In the case of Tartar vs. The Spring Creek Water and Mining Company, the action was commenced by a bill for an injunction to restrain the defendants from diverting the water-course of plaintiff’s mill, to use it for mining purposes. Tartar, the plaintiff, had succeeded to the rights of Chauncey & Co., the original proprietors of the mill. In June, 1852, Chauncey & Co. commenced the construction of a saw-mill on lands of the United States, in Shasta county, at the mouth of a small stream, called Spring Creek, and completed it in November of the same year, at a cost of about ten thousand dollars. The lands were mineral lands of the United States, containing mines of gold. The length of the creek from its source to its mouth, was about sixteen miles, and ran entirely through lands of the United States, containing gold mines. As soon as the mill was completed, Chauncey & Co. occupied it, and continued to use it until the 15th day of January, 1854. The water of said creek was the motive power by which the machinery of the mill was propelled. The defendants, who were miners, and a corporation under the laws of this state, in June, 1853, commenced the construction of a dam, ditch and flumes, about five miles above the saw-mill, in order to divert the water of the creek to mining lands in the immediate vicinity, to be used for the purposes of mining. The water was necessary, to enable the defendants to extract the gold from the land where the same was conveyed; and the ditch and flumes were constructed in 1853, to the extent of about five miles, and the dam across said creek was completed, by which the water was diverted, in October of the same year, from its natural channel into the said ditch and flume, and conveyed to the mining lands in its vicinity, and there was used, and had since been used, by the defendants for mining purposes, up to the time of filing the complaint. The cost of the construction of the said flume, ditch and dam, was about eighteen thousand dollars. For five months of the year, from June 1st to November 1st, the water of said creek is not sufficient for the said miners and the propelling of said mill at the same time; but during the rest of the year the water of the stream is sufficient, both for the defendants and plaintiff. The plaintiff succeeded to the rights of Chauncey & Co. on January the 15th, 1854, with a full knowledge of the above facts, and continued to use the mill until July, 1854. The defendants, since the 15th of January, 1854, and before the commencement of this suit, extended their ditch and flume about a mile, at a cost of two thousand dollars, and the plaintiff sold and delivered lumber to them, amounting to several hundred dollars, to be used in such extension, and was paid for the same. By means of the diversion of the water during the time, the water was insufficient for both the plaintiff and defendants, the plaintiff, in the year 1854, and before the commencement of the suit, did not make as much by his mill as he otherwise would have done, to the amount of one thousand dollars. Upon the foregoing state of facts a perpetual injunction was granted, and damages decreed to plaintiff, which decision and decree were affirmed upon appeal to the Supreme Court. Heydenfeldt, J., in delivering the opinion of the court, says: “In Irwin vs. Phillips, we say, ‘that however much the policy of the state, as indicated by her legislation, has conferred the privilege to work the mines, it has equally conferred the right to divert the streams from their natural channels.” And further we say, ‘The miner who selects a piece of ground to work, must take it as he finds it, subject to prior rights which have an equal equity, on account of an equal recognition by the sovereign power.’ “It results from the consideration we have given the case, that the right to mine for the precious metals can only be exercised upon public lands; that although it carries with it the incidents to the right, such as the use of wood and water, those incidents must also be of the public domain in like manner as the lands; that a prior appropriation of either to steady individual purpose, establishes a quasi private proprietorship, which entitles the holder to be protected in its quiet enjoyment against all the world but the true owner, except in the single case provided to the contrary by the statute which I have already adverted to.” In the case of Burdge vs. Underwood,' the plaintiff brought his action to abate a nuisance (which nuisance was alleged to consist in the digging of a ditch through plaintiff’s enclosure), and for damages. The defence set up that the ditch was made to conduct water for mining purposes, and that the land is public land, only occupied by plaintiff for agricultural and grazing purposes. The facts of the case appearing before the court below were these: in 1852, the plaintiff took up a tract of public land, which he had since used for agricultural and grazing purposes. It further appeared, that within the time allowed by law, and before the commission of the acts complained of, the plaintiff had constructed a corral, dwelling and out-houses, and fences, greatly exceeding in value the sum of two hundred dollars. That while plaintiff was there residing upon, cultivating, and grazing said land, the defendants, for the purpose of conveying water to certain mining claims owned by them, and distant about one mile from plaintiff's premises, constructed the ditch mentioned in plaintiff's complaint, through a part of plaintiff’s enclosure, and within twenty-five or thirty feet of plaintiff's corral, at the time and afterward used by him for corralling his cattle, and to the depth, near said corral, of about six feet. That said ditch was dug against the wishes and consent of plaintiff for the purpose aforesaid, and upon the most practicable route to convey the water to said claims from a ravine above the premises of the plaintiff. That it could have been constructed so as not to run through or interfere with the plaintiff's premises, but at a greatly increased cost. That a portion of said premises, some distance from said corral, had been prospected and found to contain gold. That said ditch prevents plaintiff from using his corral without endangering his animals.

1 6 Cal 45.

The court rendered judgment for plaintiff for damages, and for the abatement of the nuisance, which judgment was affirmed upon appeal to the Supreme Court. In the opinion delivered by Heydenfelt, J., that court reiterates the reasoning employed in the cases last cited, and in language substantially similar. It would seem from this decision that the miner, in prosecuting his legitimate business, has no right to dig or work within the enclosure surrounding a dwelling-house, corral, or other improvements of another.

3d.—The Rights of Foreign Miners.

The laws of this state prohibit foreigners from taking gold out of the mines, except upon obtaining a license. The act of March 30th, 1853, as subsequently amended, and omitting such portions as have been repealed, provides as follows: SEC. 1. No person not a citizen of the United States, or who shall not have declared his intention to become such prior to the passage of this act, according to law (California Indians excepted) shall be allowed to take gold from the mines of this state, or hold a mining claim therein, unless he shall first procure and pay a license therefor, as hereinafter provided. SEc. 2. It shall be the duty of the controller of state to procure a sufficient number of blank licenses, which shall be substantially in the following form, and numbered consecutively, and a record thereof be filed in his office : [See Forms, at the end of this chapter.] Every subsequent license after the first, shall be dated from the expiration of the former license, issued by the sheriff or his

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