5 Cal. 140, Irwin v. Phillips

Citation:5 Cal. 140
Opinion Judge:HEYDENFELDT, Judge
Party Name:Matthew W. Irwin, Respondent, v. Robert Phillips & others, Appellants
Attorney:Dunn & Marshall, for Appellants. Jo. G. Baldwin, for Respondent. Alexander Anderson, also for Respondent, argued,
Judge Panel:JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
Case Date:January 01, 1855
Court:Supreme Court of California

Page 140

5 Cal. 140

Matthew W. Irwin, Respondent,


Robert Phillips & others, Appellants

Supreme Court of California

January, 1855

Page 141

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Appeal from the District Court of the Tenth Judicial District, Nevada County.

The material facts of the case are contained in the opinion of the Court.

At the trial, the jury found that the possession of the plaintiff was anterior to that of the defendants, and under instructions from the Court, found for the plaintiff.

Defendants' counsel excepted to the ruling of the Court, and from the final judgment entered in the cause, appealed.


Dunn & Marshall, for Appellants.

1. The Court erred in its instructions to the jury. 1 Ch. Black. 205, and 3 Ibid. 218. Ang. on Water Courses, p. 140, and §§ 89, 101, 114, 115, 127, 128, 133, 135, 140, 210, 216, 241, 332, 350, and 352. Cook v. Hull , 3 Mass. 263. Colburn v. Richards , 13 Mass. 397. Arnold v. Foot, 12 Wend. 330. Crooker v. Bragg, 10 Wend. 260. People v. Canal Appraisers, 13 Wend. 355. Summers v. Tillotson, 7 Pick. 198. 15 Johns. 217. Coke on Littleton, 132. Coke's Inst. 2. Rex v. Yarborough, 3 B. & C. 91. Ang. on Water Courses, p. 4, § 14.

2. There cannot under our law be a prescriptive right presumed short of an occupancy of ten years at least, as thelaw makes no provision on that head. See proof as to length of occupancy, and Platt v. Root, 15 Johns. 213; Colvin v. Bennett, 17 Wend. 564.

Jo. G. Baldwin, for Respondent.

1. The plaintiff being in possession, whether of public or private land, whether the possession be rightful or tortious, he may maintain trespass for the invasion. 2 Wheat. Selw. 1018. 1 Chitty's Pl. 178, and authorities.

2. It is especially so here, where the whole course of the General and State Governments has been to encourage the settlement and appropriation of the public land, and especially the mining lands and those necessary for the purpose of mining.

3. The negative and positive policy of the Government raises new principles of law and new relations in reference to the mineral lands of the United States or of this State; and, therefore, this Court must apply new principles, or make new principles for this subject, and the interests connected with it, so as to advance the great ends of this new interest.

4. This policy may be stated with sufficient definitiveness to be the right of individual appropriation, subject to such rules and limitations as may be necessaryto give effect to two leading principles: First, The most productive working of the mines. Second, The interest, convenience, and profit of the greatest number.

5. But these last principles are subservient to another principle, which is necessary to give effect to these primary principles; and this principle is protection to labor and encouragement of it, which can only be given by allowing to mining claims and appropriations a right of property, with its incidents.

6. The lands being open to this appropriation, the rule of time is the rule of right; and the first taker is to be protected in his entry and possession. This is necessary to public peace and policy.

7. There is no difference between an appropriation of land and an appropriation of water; this being a mere accessory, as sand, gravel, gold dust, or anything else, the Courts must give effect to this rule and right, as to the water as to the land.

8. The water running over public land is an element, attached or coming out of the soil, and may be used for the purpose of working out the more important interests connected with the gold and minerals.

9. There is no reason why lands or minerals (or thoseowning them) in the bed or near the bed of a stream, should be preferred, in the use of this water, to lands elsewhere, any more than if coal were an element of use in working gold, it should be held for the use of the land immediately over it.

10. If there is, then it must be...

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