hubert howe bancroft - Central Pacific Railroad Photographic History ...

228 THE JUDICIARY.
mineral or agricultural, offered less difficulty, and were
accepted with greater approbation. The mining
statutes of California, from which the mining laws of
the more recent states and territories were chiefly
borrowed, provided that in suits for mining claims,
brought in magistrate's courts, the customs and regulations
of the miners in the vicinity should be put in
evidence, and when not in conflict with the constitution
and laws of the United States, should govern the
decision. Thus the miners became their own lawmakers,
the same principle being adopted in all the
courts. The first appropriator of a claim was considered
to be the owner, from whom title could be acquired
by another.
This principle was applied to possessory rights in
all the public lands, the government, which owned
the lands, not interfering. To interfere in all these
cases, as a party to the suit, would have produced indescribable
confusion; but the court proceeded as if
a grant really existed to the first claimant of mines,
water-privileges, or lands.
In the early years of mining, an opinion of the supreme
court gave weight to the belief entertained by
some, that gold and silver belonged to the state, by
virtue of her sovereignty ; that the state had the sole
right to authorize the mines to be worked, to frame
laws and regulations, to license miners, and to affix
such terms and conditions as she might deem proper
to the freedom of their use. Under this decision the
lands of private proprietors were invaded for mining
purposes as freely as public lands. This brought on
numerous suits for intrusion on private property
claimed under United States laws, and the supreme
court was forced to modify this opinion, and to decide
that " an invasion of private property in order to enjoy
a public franchise would require more specific legislation
than any yet resorted to." This right to
invade private lands in search of gold was first repudiated
in 1859, by Judge Field, he finally establishing