Henshaw v. Clark & One Hundred & Three Chinamen

Field, C. J. delivered the opinion of the Court—Cope, J. concurring.

This is a suit on the equity side of the Court, to restrain the defendants from committing trespass, in the nature of waste, upon the premises of the plaintiffs. The premises are fitted, to a limited degree, for agricultural and grazing purposes, and contain in their entire extent deposits of gold. The plaintiffs derive their title fr.om a grant of the former Mexican Governor of California, and a patent issued, upon its confirmation, by the United States. The acts charged as trespasses consist in excavating ditches, and digging up the soil, and in flooding a portion of the premises to the extent of about fifty acres, with water elevated from Feather River, by means of machinery constructed for that purpose. The defendants admit the commission of those acts, and in substance allege, by way of justification, that the grant and patent, assuming that the plaintiffs derived title to the premises thereunder, conveyed no right to the gold and other minerals which the premises contain; that the defendants are miners, and as such committed the several acts charged against them, in their business of mining; that those acts were accompanied with no more damage to the premises than the business necessarily required; that as miners they had good right and authority to enter upon the premises, or any portion thereof, for the purpose of mining, and extracting the precious metals from the soil, and to use the premises and materials found thereon necessary for that purpose.

The preliminary injunction, granted on the filing of the com[464]plaint, was dissolved, and from the order of dissolution the appeal is taken. On the motion to dissolve, affidavits on behalf of the respective parties, were read in addition to the pleadings. Some criticism is indulged in reference to the effect of the allegations of the complaint, and the denials of the answer, which we do not consider, for we are of opinion that the pleadings, though not very formally drawn, (and which might be amended, to their great improvement,) present the real matter in controversy between the parties.

The questions raised by the record relate, first, to the right of miners to enter upon private land and subject it to such uses as may be necessary to enable them to extract the precious metals which it may contain; and, second, to the right of the owner to the equitable interference of the Court to restrain, by injunction, such entry upon and use of his land.