Tartar v. Spring Creek Water & Mining Co.

Heydenfeldt, J., delivered the opinion of the Court.

Murray, C. J., concurred.

The current of decisions of this Court go to establish, that the policy of this State, as derived from her legislation, is to permit settlers, 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.

In evidence of this, Acts have been passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to provide for the recovery of mining claims; recognizing canals and ditches which were known to divert the water of streams from their natural channels, for mining purposes; and others, of like character.

This policy has been extended equally to all pursuits, and no partiality for one over another has been evinced, except in the single case *398 where the rights of the agriculturist are made to yield to those of the miner, where gold is discovered in his land. This exceptional privilege is of course confined to public lands, as we held in Stokes v. Barrett and others, at the last January Term. The policy of the exception is obvious. Without it, the entire gold region might have been enclosed in large tracts, under the pretence of agriculture and grazing and eventually, what would have sufficed as a rich bounty to many thousands, would be reduced to the proprietorship of a few.

Aside from this, the legislation and decisions have been uniform in awarding the right of peaceable enjoyment to the first occupant, either of the land, or of any thing incident to the land. In the case of Irwin v. Phillips, at the January Term, the question was as to the use of water, and it was decided upon the principle of prior occupancy.

The appellants insist, that as the State has granted the franchise of digging gold, all of the incidents necessary to that purpose—wood, water, &c.,—must follow. This is certainly the doctrine of the common law, and would be held decisive in this case, in the absence of any other right to contradict it. But in previous decisions we have shown that there is nothing sufficiently expressive in the character of that legislation, which warrants an interference with the already acquired rights of individuals, except in the single case of agricultural lands. In the case of Stokes v. Barrett, we declared, that “ to authorize an invasion of private property, in order to enjoy a public franchise, would require more specific legislation than any yet resorted to.”

In Irwin «. 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 wé say, “ the miner who selects a piece of ground to work, must take it as he finds it, subject to prior rights which have a.n equal equity on account of an equal recognition by the sovereign power.”

In the case of Fitzgerald v. TJrton, at the July Term, it appeared that a party of miners invaded, for mining purposes, a town lot, built upon and used as a tavern and stable yard. The defendants there relied upon the statute, which gives mining privileges upon public lands in the possession of .others for agricultural and grazing purposes. In *399 referring to that statute, we say: “In permitting miners, however, to go upon public lands occupied by others, it has legalized what would otherwise have been a trespass, and the Act cannot be extended by implication to a class of cases not specially provided for.”

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.

Upon the remaining point argued, I have only to add, that the facts do not make out a license from the respondent to the appellants. It would be strange to take away a party’s rights upon such slight grounds.

Judgment affirmed.