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15 Cal. 85

Clark v. Duval

California Supreme Court

Decided July 1, 1860

California Supreme Court · decided 1860-07-01

<p>Appeal from the Fourteenth District.</p> <p>Suit for damages for entering upon plaintiff’s land, and constructing reservoirs and flumes, digging ditches, and diverting water. Plaintiff was in the actual possession, by inclosure, of three hundred and twenty acres of public mineral land, which he had originally taken up under the Possessory Act of 1852. The land, or a portion of it, was fit for agricultural purposes, and was used by plaintiff for raising grain and vegetables. Plaintiff lived on the land with his family, and had valuable improvements. He had, also, cut a ditch from the hill-side to various portions of the land for irrigation.</p> <p>Defendants entered upon a portion of the land as miners; dug ditches, constructed a reservoir and flume for use in working the mines on said land; they, also, cut plaintiff’s ditch, and diverted the water.</p> <p>The acts of defendants were necessary for their mining purposes.</p> <p>The jury found a special verdict, assessing damages for cutting plaintiff’s ditch, and diverting water, at two hundred and two dollars, and the same sum for constructing a reservoir and digging ditches on the land.</p> <p>The Court gave plaintiff judgment for the former damages, and granted an injunction, restraining defendants from diverting the water, by tapping plaintiff’s ditch, bat denied damages and injunction for digging ditches and constructing reservoirs. From this latter part of the judgment, plaintiff appeals.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1860-07-01

How this case has been cited

Cited by 3 later decisions — most recently April 1910

3 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Baldwin, J. delivered the opinion of the Court

¶1Cope, J. and Field, C. J. concurring.

¶2The 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.

¶3We 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.

¶4In 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.

¶5Judgment affirmed.

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