1. The ninth section of the Act of Congress of July 26, 1866,
"granting the right of way to ditch and canal owners over the
public lands, and for other purposes," enacted
"That whenever, by priority of possession, rights to the use of
water for mining, agricultural, manufacturing, or other purposes
have vested and accrued, and the same are recognized and
acknowledged by the local customs, laws, and the decisions of
courts, the possessors and owners of such vested rights shall be
maintained and protected in the same, and the right of way for the
construction of ditches and canals for the purposes aforesaid is
hereby acknowledged and confirmed,
provided however that
whenever, after the passage of this act, any person or persons
shall, in the construction of any ditch or canal, injure or damage
the possession of any settler on the public domain, the party
committing such injury or damage shall be liable to the party
injured for such injury or damage."
Held: 1. that this section only confirmed to the owners
of water rights and of ditches and canals on the public lands of
the United States the same rights which they held under the local
customs, laws, and decisions of the courts, prior to its passage;
2. that the proviso conferred no additional rights upon the owners
of ditches subsequently constructed, but simply rendered them
liable to parties on the public domain whose possessions might be
injured by such construction.
2. The origin and general character of the customary law of
miners stated and explained.
3. By that law, the owner of a mining claim and the owner of a
water right in California hold their respective properties from the
dates of their appropriation, the first in time being the first in
right; but where both rights can be enjoyed without interference
with or material impairment of each other, the enjoyment of both is
allowed.
4. By that law, a person cannot construct a ditch to convey
water across the mining claim of another, taken up and worked
according to that law before the right of way was acquired by the
ditch owner, so as to prevent the further working of the claim in
the usual manner in which such claims are worked, nor so as to cut
off the use of water previously appropriated by the miner for
working the claim, or for other beneficial purposes.
5. Accordingly, where the owner of a mining claim worked by the
method known as "the hydraulic process," cut and washed away a
portion of a ditch so as to let out the water flowing in it, the
ditch having been so constructed
Page 98 U. S. 454
across the claim previously acquired as to prevent it from being
further worked by that method, and to prevent the use of water
previously appropriated by him --
held that the cutting
and washing away of the ditch, it having been done in order that
the claim might be worked and the water used as before, was not an
injury for which damages could be recovered.
The facts are stated in tire opinion of the Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
In 1873, the plaintiff's testator constructed a ditch or canal
in Placer County, California, to convey the waters of a canyon and
of tributary and intermediate streams to a mining locality known as
Georgia Hill, distant about seventeen miles, for mining, milling,
and agricultural purposes and for sale. The ditch was completed in
December of that year, and immediately thereafter the waters of the
canyon were turned into it. The ditch had a capacity to carry a
thousand inches of water, and it is alleged that during the rainy
season of the year in California, which extends from about the 1st
of November to the 1st of April, the canyon, tributaries, and
intermediate streams would supply that quantity, and during the dry
season not less than one hundred inches. The intention of the
testator, as declared on taking the initiatory steps for their
appropriation, was to divert two thousand inches of the waters by
means of a flume and ditch.
In its course to Georgia Hill, the ditch crossed a gulch or
canyon in the mountains known as Fulweiler's Gulch, the waters of
which had been appropriated some years before by the defendant, who
had constructed ditches to receive and convey them to a reservoir,
to be used as needed. One of these ditches in the gulch was
intersected by the ditch of the testator, and the waters which
otherwise would have flowed in it were diverted to his ditch. The
defendant thereupon repaired and reopened his own ditch, turning
into it the waters which had previously flowed in it, and in so
doing cut and washed away a portion of the ditch of the testator as
to let out the waters
Page 98 U. S. 455
brought down from the canyon above and the intermediate streams.
It is for alleged damages thus caused to the testator, and to
restrain the continuance of the alleged injury to his ditch, and
any interference with its use, that the present action was
brought.
The defendant not only justified the cutting of the testator's
ditch in the manner stated, because necessary for the repair and
reopening of his own ditch and to retain the waters of the gulch
previously appropriated and used by him, but on the further ground
that the ditch of the testator traversed mining claims owned many
years before by him or those through whom he derived his interest,
and would prevent their being successfully worked.
It appears from the answer, which the court finds to be correct
in this particular, that for many years prior to this action, the
defendant or his grantors and predecessors in interest had been in
the possession of a portion of Fulweiler's Gulch, extending from a
point about twelve hundred feet below the crossing of the
testator's ditch to a point about twelve hundred feet above it,
including the bed of the gulch and fifty feet of its banks, on each
side; that during this period the ground was continuously held and
worked for mining purposes, and as a mining claim, in accordance
with the usages, customs, and laws of miners in force in the
district; that in working the claim and extracting the gold, the
method employed was what is termed "the hydraulic process," by
which a large volume of water is thrown with great force through a
pipe or hose upon the sides of the hills, and the gold-bearing
earth and gravel are washed down, and the gold so loosened that it
can be readily separated; and that the ditch of the testator
traversed the immediate front and margin of this gold-bearing earth
and gravel, rendering the same inaccessible from the outlets of the
gulch, down which they would be washed, thus practically
destroying, if allowed to remain, the working of the mining
ground.
On the argument, it was admitted that the defendant's right of
way for his ditch was superior to the testator's right of way for
the one owned by him, being earlier in construction, and the waters
of the gulch being first appropriated, and therefore that the duty
rested upon the testator, and since his death
Page 98 U. S. 456
upon his executor, to so adjust the crossings of the ditches as
not to interfere with the full use and enjoyment by the defendant
of his prior right. It was contended that such crossings had been
so adjusted by the testator, but were destroyed by the
defendant.
It was also admitted that the extension of the testator's ditch,
at the place where it was constructed across the claim of the
defendant, prevented the successful working of the claim, but as
the land over which the ditch passed, and on which the claim is
situated, is a portion of the public domain of the United States,
it was contended that the right of way for the ditch was superior
to the right to work the claim, and that such superior right was
conferred by the ninth section of the Act of Congress of July 26,
1866. That section enacted:
"That whenever, by priority of possession, rights to the use of
water for mining, agricultural, manufacturing, or other purposes
have vested and accrued, and the same are recognized and
acknowledged by the local customs, laws, and the decisions of
courts, the possessors and owners of such vested rights shall be
maintained and protected in the same, and the right of way for the
construction of ditches and canals for the purposes aforesaid is
hereby acknowledged and confirmed,
provided however that
whenever after the passage of this act any person or persons shall,
in the construction of any ditch or canal, injure or damage the
possession of any settler on the public domain, the party
committing such injury or damage shall be liable to the party
injured for such injury or damage."
14 Stat. 253.
There are some verbal changes in the section as reenacted in the
Revised Statutes, but none affecting its substance and meaning.
Rev. tat., sec. 2339.
The position of the plaintiff's counsel is that of the two
rights mentioned in this section, only the right to the use of
water on the public lands, acquired by priority of possession, is
dependent upon local customs, laws, and decisions of the courts,
and that the right of way over such lands for the construction of
ditches and canals is conferred absolutely upon those who have
acquired the water right, and is not subject in its enjoyment to
the local customs, laws, and decisions. This position, we think,
cannot be sustained. The object of the section was
Page 98 U. S. 457
to give the sanction of the United States, the proprietor of the
lands, to possessory rights, which had previously rested solely
upon the local customs, laws, and decisions of the courts, and to
prevent such rights from being lost on a sale of the lands. The
section is to be read in connection with other provisions of the
act of which it is a part, and in the light of matters of public
history relating to the mineral lands of the United States. The
discovery of gold in California was followed, as is well known, by
an immense immigration into the state, which increased its
population within three or four years from a few thousand to
several hundred thousand. The lands in which the precious metals
were found belonged to the United States, and were unsurveyed, and
not open by law to occupation and settlement. Little was known of
them further than that they were situated in the Sierra Nevada
mountains. Into these mountains the emigrants in vast numbers
penetrated, occupying the ravines, gulches, and canyons and probing
the earth in all directions for the precious metals. Wherever they
went, they carried with them that love of order and system and of
fair dealing which are the prominent characteristics of our people.
In every district which they occupied they framed certain rules for
their government by which the extent of ground they could severally
hold for mining was designated, their possessory right to such
ground secured and enforced, and contests between them either
avoided or determined. These rules bore a marked similarity,
varying in the several districts only according to the extent and
character of the mines, distinct provisions being made for
different kinds of mining, such as placer mining, quartz mining,
and mining in drifts or tunnels. They all recognized discovery,
followed by appropriation, as the foundation of the possessor's
title, and development by working as the condition of its
retention. And they were so framed as to secure to all comers,
within practicable limits, absolute equality of right and privilege
in working the mines. Nothing but such equality would have been
tolerated by the miners, who were emphatically the lawmakers, as
respects mining, upon the public lands in the state. The first
appropriator was everywhere held to have, within certain well
defined limits, a better right than others to the claims taken up,
and in all controversies
Page 98 U. S. 458
except as against the government he was regarded as the original
owner, from whom title was to be traced. But the mines could not be
worked without water. Without water, the gold would remain forever
buried in the earth or rock. To carry water to mining localities
when they were not on the banks of a stream or lake became,
therefore, an important and necessary business in carrying on
mining. Here also the first appropriator of water to be conveyed to
such localities for mining or other beneficial purposes was
recognized as having, to the extent of actual use, the better
right. The doctrines of the common law respecting the rights of
riparian owners were not considered as applicable, or only in a
very limited degree, to the condition of miners in the mountains.
The waters of rivers and lakes were consequently carried great
distances in ditches and flumes, constructed with vast labor and
enormous expenditures of money, along the sides of mountains and
through canyons and ravines, to supply communities engaged in
mining as well as for agriculturists and ordinary consumption.
Numerous regulations were adopted or assumed to exist from their
obvious justness for the security of these ditches and flumes, and
the protection of rights to water not only between different
appropriators but between them and the holders of mining claims.
These regulations and customs were appealed to in controversies in
the state courts and received their sanction, and properties to the
value of many millions rested upon them. For eighteen years -- from
1848 to 1866 -- the regulations and customs of miners, as enforced
and molded by the courts and sanctioned by the legislation of the
state, constituted the law governing property in mines and in water
on the public mineral lands. Until 1866, no legislation was had
looking to a sale of the mineral lands. The policy of the country
had previously been, as shown by the legislation of Congress, to
exempt such lands from sale. In that year, the act, the ninth
section of which we have quoted, was passed. In the first section
it was declared that the mineral lands of the United States were
free and open to exploration and occupation by citizens of the
United States and those who had declared their intention to become
citizens, subject to such regulations as might be prescribed by law
and the local customs or rules of
Page 98 U. S. 459
miners in the several mining districts, so far as the same were
not in conflict with the laws of the United States. In other
sections it provided for acquiring the title of the United States
to claims in veins or lodes of quartz bearing gold, silver,
cinnabar, or copper, the possessory right to which had been
previously acquired under the customs and rules of miners. In no
provision of the act was any intention manifested to interfere with
the possessory rights previously acquired or which might be
afterwards acquired; the intention expressed was to secure them by
a patent from the government. The senator of Nevada, Hon. William
M. Stewart, the author of the act, in advocating its passage in the
Senate, spoke in high praise of the regulations and customs of
miners, and portrayed in glowing language the wonderful results
that had followed the system of free mining which had prevailed
with the tacit consent of the government. The Legislature of
California, he said, had wisely declared that the rules and
regulations of miners should be received in evidence in all
controversies respecting mining claims, and, when not in conflict
with the Constitution or laws of the state or of the United States,
should govern their determination, and a series of wise judicial
decisions had molded these regulations and customs into "a
comprehensive system of common law, embracing not only mining law,
properly speaking, but also regulating the use of water for mining
purposes." The miner's law, he added, was a part of the miner's
nature. He had made it, and he trusted it and obeyed it. He had
given the honest toil of his life to discover wealth, which, when
found, was protected by no higher law than that enacted by himself
under the implied sanction of a just and generous government. And
the act proposed continued the system of free mining, holding the
mineral lands open to exploration and occupation, subject to
legislation by Congress and to local rules. It merely recognized
the obligation of the government to respect private rights which
had grown up under its tacit consent and approval. It proposed no
new system, but sanctioned, regulated, and confirmed a system
already established, to which the people were attached. Cong.Globe,
1st Sess., 39th Cong., part iv., pp. 3225-3228.
These statements of the author of the act in advocating its
Page 98 U. S. 460
adoption cannot, of course, control its construction where there
is doubt as to its meaning, but they show the condition of mining
property on the public lands of the United States and the tenure by
which it was held by miners in the absence of legislation on the
subject, and thus serve to indicate the probable intention of
Congress in the passage of the act.
Whilst acknowledging the general wisdom of the regulations of
miners, as sanctioned by the state and molded by its courts, and
seeking to give title to possessions acquired under them, it must
have occurred to the author, as it did to others, that if the title
of the United States was conveyed to the holders of mining claims,
the right of way of owners of ditches and canals across the claims,
although then recognized by the local customs, laws, and decisions,
would be thereby destroyed unless secured by the act. And it was
for the purpose of securing rights to water and rights of way over
the public lands to convey it which were thus recognized that the
ninth section was adopted, and not to grant rights of way where
they were not previously recognized by the customary law of miners.
The section purported in its first clause only to protect rights to
the use of water for mining, manufacturing, or other beneficial
purposes acquired by priority of possession, when recognized by the
local customs, laws, and decisions of the courts, and the second
clause, declaring that the right of way for the construction of
ditches and canals to carry water for those purposes "is
acknowledged and confirmed," cannot be construed as conferring a
right of way independent of such customary law, but only as
acknowledging and confirming such right as that law gave. The
proviso to the section conferred no additional rights upon the
owners of ditches subsequently constructed; it simply rendered them
liable to parties on the public domain whose possessions might be
injured by such construction. In other words, the United States by
the section said that whenever rights to the use of water by
priority of possession had become vested and were recognized by the
local customs, laws, and decisions of the courts, the owners and
possessors should be protected in them, and that the right of way
for ditches and canals incident to such water rights, being
recognized in the same manner, should be "acknowledged and
confirmed;"
Page 98 U. S. 461
but where ditches subsequently constructed injured by their
construction the possessions of others on the public domain, the
owners of such ditches should be liable for the injuries sustained.
Any other construction would be inconsistent with the general
purpose of the act, which, as already stated, was to give the
sanction of the government to possessory right acquired under the
local customs, laws, and decisions of the courts.
This view of the object and meaning of the ninth section was
substantially taken by the Supreme Court of California in the
present case; it was adopted at an early day by the Land Department
of the government, and the subsequent legislation of Congress
respecting the mineral lands is in harmony with it. Letter of
Commissioner Wilson of Nov. 23, 1869; Copp's U.S. Mining Decisions
24; Acts of Congress of July 9, 1870, and May 10, 1872, Rev.Stat.,
tit. 32, c. 6.
By the customary law of miners in California, as we understand
it, the owner of a mining claim and the owner of a water right
enjoy their respective properties from the dates of their
appropriation, the first in time being the first in right; but
where both rights can be enjoyed without interference with or
material impairment of each other, the enjoyment of both is
allowed. In the present case, the plaintiff admits that it was
incumbent upon the testator or himself to so adjust the crossing of
the two ditches that the use of the testator's ditch should not
interfere with the prior right of the defendant to the use of the
water of the gulch, and it would seem that, so far as the flow of
the water was concerned, this was done. Had there been nothing
further in the case, the claim of the plaintiff would have been
entitled to consideration. But there was much more in the case. The
chief value of the water of the gulch was to enable the defendant
to work his mining claim by the hydraulic process. The position of
the testator's ditch prevented this working, and thus deprived him
of this value of the water and practically destroyed his mining
claim. No system of law with which we are acquainted tolerates the
use of one's property in this way so as to destroy the property of
another. The cutting and washing away of a portion of the
testator's ditch by the defendant, this having been done "in
Page 98 U. S. 462
the exercise, use, and enjoyment of his own water rights, in the
usual and in a reasonable manner," as found by the court, and in
order that his claim might be worked as before, was not, therefore,
an injury for which damages could be recovered.
*
Judgment affirmed.
* The customary law of miners, as stated in the opinion, is not
applicable in California to controversies arising between them or
ditch owners and occupants of the public lands for agricultural or
grazing purposes. It has been the general policy of the state
"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."
Tartar v. Spring Creek Co., 5 Cal. 398. But at an early
day an exception was made to this policy in cases where the
interests of agriculturists and of miners conflicted. By an Act
passed April 20, 1852, a right of action was given to any one
settled upon the public lands for the purpose of cultivating or
grazing against parties interfering with his premises, or injuring
his lands where the same were designated by distinct boundaries,
and did not exceed one hundred and sixty acres in extent, with a
proviso, however, that if the lands contained mines of precious
metals, the claim of the occupant should not preclude any persons
desiring to do so from working the mines "as fully and unreservedly
as they might or could do had no possession or claim been made for
grazing or agricultural purposes." Stat. 1852, p. 158.
Under this act, the supreme court of the state held that miners,
for the purpose simply of mining, could enter upon the land thus
occupied, but that the act legalized what would otherwise have been
a trespass, and could not be extended by implication to a class of
cases not specially provided for. Accordingly, ditches constructed
over lands thus held, without the consent of the occupant, though
designed to convey water to mining localities for the purpose of
mining, were held to be nuisances, and upon the complaint of the
occupant were ordered to be abated.
Stoakes v. Barrett, 5
Cal. 37;
McClinton v. Bryden, id., 97;
Fitzgerald v.
Urton, id., 308;
Burge v. Underwood, 6
id.
46;
Wermer v. Lowery, 11
id. 104.
Since these decisions, there has been some legislation in the
state permitting water to be conveyed upon certain conditions
across the lands of others. Such legislation, if limited to merely
regulating the terms upon which possessory rights subsequently
acquired on the public lands in the state may be enjoyed in the
absence of title from the United States, may not be open to
objection.