Conger v. Weaver

California Supreme Court Jul 1, 1856Published

Before: Heydenfeldt, Murray

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Holding. The court held that the construction of ditches and canals on public lands for mining purposes constitutes a vested right protected by a presumed license from the sovereign, established through the survey of the land and diligent prosecution of the work. Consequently, such possessory acts of ownership are sufficient to protect the undertaker's rights against subsequent interference.

Issues

Whether the construction of water-conveyance works on public lands creates a vested right protected by a presumed license from the sovereign.
At what point in time does the right to construct such works commence to protect the undertaker from subsequent interference.
Whether a slight divergence from an original surveyed line for a canal constitutes a trespass when the work remains within the same property.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the survey of the ground, planting stakes along the line, and actually commencing and diligently pursuing the work, is as much possession as the nature of the subject will admit”

“this right, then, like that of digging gold, is a franchise; the attending circumstances raise the presumption of a general grant from the sovereign of this privilege”

“if the divergence was no actual injury to the plaintiffs, it was damnum absque injuria”

Synopsis

The right to he protected in the possession of the public lands in this State, is founded alone on the doctrine of presumption; for a license to occupy, from the owner, will be presumed.

The Government of the United States, in the face of the notorious occupation of the public lands in this State by her citizens, that upon those lands they have mined for gold, constructed canals, built saw-mills, cultivated farms, and practiced every mode of industry, has asserted no right of ownership to any of the mineral lands in this State.

The State Government has not only acquiesced in this universal appropriation of the public lands for all these purposes, but has studiously encouraged them, in some instances, and recognized them in all; and this Court has held that the State, in her legislation on the subject, has established the policy of permitting all who wish, to work the mines, with or without conditions.

Yet this permission has not been derived from express legislation, but by general legislation, looking at the general state of things, from which a license is necessarily presumed to all who choose to avail themselves of it.

Among the other pursuits thus encouraged, and which have been referred to in legislative acts and been made the subjects of revenue, is the construction of ditches, canals and flumes, for the purpose of conducting water for mining purposes.

This right, then, like digging gold, is a franchise, and the attending circumstances raise the presumption of a general grant from the sovereign, of this privilege; and every one who wishes to attain it has license from the State to do so,, provided that the prior rights of others are not infringed upon.

As, from the nature of these works, time is necessary to complete them, the license would be valueless, if the right did not commence until their completion; and it must be presumed that, in granting the license, the State did not intend it should be turned into so vain a thing, but designed it to be effectual, for the object in view; and it consequently follows that the same rule must be applied here to protect this right as any other.

In constructing canals, under the license of the State, the survey of the ground, planting stakes along the line, giving public notice, and actually commencing and diligently pursuing the work, is as much possession as the nature of the subject will admit, and forms a series of acts of ownership which must be conclusive of the right.

The enclosure of the ground used in digging a canal, not being necessary for the work, would give its proprietors no higher rights; nor is it necessary, as notice, to those who have received actual notice, of the intended line of the canal.

Opinion — Heydenfeldt

Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Justice Terry concurred. Mr. Chief Justice Murray dissented.

It is admitted in the argument, on both sides, that the rights claimed by both parties are in and to the public lands, neither of them having title, except what arises from possession, or the claim of it.

In the decisions we have heretofore made upon the subject of private rights to the public domain, we have applied simply the rules of the common law. We have found that its principles have abundantly sufficed for the determination of all disputes which have come before us; and we claim that we have neither modified its rules, nor have we attempted to legislate upon any pretended ground of their insufficiency.

That new conditions and new facts may produce the novel application [556]of a rule which has not been before applied, in like manner, does not make it any less the common law; for the latter is a system of grand principles, founded upon the mature and perfected reason of centuries. It would have but little claim to the admiration to which it is entitled, if it failed to adapt itself to any condition, however new, which may arise; and it would be singularly lame if it is impotent to determine the right of any dispute whatsoever. Having, as far as we have gone, met all difficulties by adhering to its doctrines, we have no ground to presume that we will have to go beyonds its precincts for a solution of any which may arise.

One of the favorite and much indulged doctrines of the common law, is the doctrine of presumption. Thus, for the purpose of settling men’s differences, a presumption is often indulged, where the fact presumed cannot have existed. In support of this position, I will refer to a few eminent authorities.

In Eldridge v. Knott, Cowper, 215, Lord Mansfield says: “ Lord Coke says, somewhere, that an Act of Parliament may be presumed, and of late it has been held that even in the case of the crown, which is not bound by the statutes, a grant may be presumed from great length of possession. It was so done in the case of the corporation of Hull & Horner; not that, in such cases, the Court really thinks such a grant has been made, because it is not probable a grant should have existed without its being on record, but they presume the fact for the purpose, and from a principle, of quieting the possession.”

Conger v. Weaver

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Synopsis

Opinion — Heydenfeldt

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Dissent — Murray

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