Rupley v. Welch

California Supreme Court Jul 1, 1863Published

Before: Crocker

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Holding. The court held that while miners may lawfully enter public lands held for agricultural purposes to mine upon providing a bond for crop damages, they may not divert water from a reservoir where the owner has a vested right of prior appropriation.

Issues

Whether the Act of April 25th, 1855, is constitutional regarding the regulation of mining on agricultural lands.
Whether the defendants' entry upon the plaintiff's land for mining purposes was lawful.
Whether the defendants may be enjoined from diverting water from the plaintiff's reservoir.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The threatened diversion of water from plaintiff’s reservoir is a clear violation of a vested right of property, acquired by the plaintiff by virtue of his prior appropriation of the water”

“The entry of the defendants upon the land upon which the growing crops were, for mining purposes, was therefore lawful, and cannot properly be treated as a trespass.”

“the Court below erred in refusing the injunction against injuring the plaintiff’s reservoir or diverting water therefrom.”

Synopsis

The construction of a reservoir across the bed of a ravine, for the purpose of collecting the water flowing down the same, to be used in irrigating a garden, or fruit trees, gives to the party constructing the same, a vested right of property in the reservoir, and the right to have the water flow into the same, of which he cannot be divested by persons subsequently entering for mining purposes; and a Court of Equity will enjoin miners thus entering, from injuring the reservoir, or diverting the water therefrom.

A person entering upon and possessing public lands, under the Possessory Act of ' April 20th, 1852, holds the lands subject to the right of any person to enter upon it, and work the mines of precious metals thereon. This right of the miner to enter upon lands thus held, is subject to such regulations and restrictions as the Legislature may see fit to impose; and the Act of April 25th, 1855, compelling the miner to give bonds to the owner of crops growing on such lands, before he can use the mineral lands on which crops are growing, is but a regulation of a right given by the Act of April 20th, 1852, and is not liable to any constitutional objection.

Where the miner, who desires to dig up crops growing on land held under the Possessory Act, offers to give the proper bond required by the Act of 1855, and the owner of the crops refuses to receive it, the miner acquires by such offer a right to enter and mine on the land, and cannot be treated as a trespasser. The miner is liable, however, for the damage to the growing crops, caused by his act, and if the owner of the crops should demand of the miner payment of the damage caused to the crop, and the miner should refuse to pay, a Court of Equity would restrain him from' further working.

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This action is brought by the plaintiff to recover damages of the defendants, for entering upon certain inclosed premises, and digging up and sluicing the same, for mining purposes ; and for an injunction to restrain them from continuing these mining operations.

The premises are described in the complaint as a field of ten acres, inclosed with a rail fence, part of a larger tract in the plaintiff’s possession, on which ten acres were growing crops of grain, consisting of barley, wheat, Chile, and red clover, and other grasses of natural and planted growth. The plaintiff also avers, that near the place where the defendants are at work, he has a garden and fruit trees, and for the purpose of irrigating them, he constructed a reservoir to receive the water flowing down a ravine on the premises in questionand that the works of the defendants will divert-the water from the reservoir, and render it useless for the purpose of irrigating the garden and fruit trees. It does not clearly appear where the reservón* is located, but the inference, from the mode of [455]stating is, that the reservoir, and the garden and fruit trees, are not on the ten acres. The plaintiff also avers, that he has suffered damages to the amount of two hundred dollars, from these acts of the defendants.

The answer directly admits some of these allegations, and the residue are to be taken as true, because the complaint is verified; and the answer only controverts them by a general, instead of a specific denial of each allegation. (Civil Pr. Act, 48, 65.)

But the answer sets up, as affirmative matter of defense, that the premises are public lands, and only held by the plaintiff by a possessory title, under the act entitled “An Act prescribing the mode of Maintaining and Defending Possessory Actions on Public Lands in this State,” passed April 20th, 1852; that they contained mines of precious metals; and that the defendants entered upon them for mining purposes; and that before making such entry they offered to execute to the plaintiff their bond with good and sufficient surety, in accordance with the provisions of an act entitled “An Act to protect Owners of Growing Crops, Buildings, and other Improvements in the Mining Districts of this State,” approved April 25th, 1855; and that the plaintiff refused to accept the same; and they aver that they are now ready and willing to execute such bond, in accordance with the Statute of 1855, aforesaid. These allegations of the answer are also to be taken as true, because they are not controverted by the replication. (Civil Prac. Act. Sec. 65.) A judgment was rendered in favor of the defendants, from which the plaintiff has appealed.

Rupley v. Welch

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