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.”