15 Cal. 85 | Cal. | 1860
Cope, J. and Field, C. J. concurring.
The only question in this case, is as to the right of miners to go upon public lands in the occupancy of others for agricultural purposes, and use the land and water for the extraction of gold, such use being a reasonable use and necessary to the business of mining.
We think that the fact that the land was inclosed by the plaintiff, and not taken up in pursuance of the Possessory Act, unimportant. It is conceded that it was public mineral land; and the act making such land subordinate, when taken up for agricultural purposes, to the rights of miners, would fail of its purpose, if the process of inclosure defeated the rights of the miner.
In giving effect to the policy of the Legislature, we must hold that the miner is not confined to a mere right of entry and egress, and a right to dig the soil for gold. Whatever is indispensable to the exercise of the privilege must be allowed him; else it would be a barren right, subserving no useful end. But the substantial thing is a right to use the land, upon which he goes, not merely to dig, but to mine—and so to use the land and such elements of the freehold or inheritance, of which water is one, as to secure the benefits which were designed. This use must be reasonable, and with just respect to the rights of the agriculturist; but no question of limitation, upon the general principle giving this right of use to the miner, arises in this case.
Judgment affirmed.