Conger v. Weaver

Citations

• 6 Cal. 548

Syllabus

<p>The right to he protected in the possession of the public lands in this State, is founded alone on the doctrine of presumption; for a license to occupy, from the owner, will be presumed.</p> <p>The Government of the United States, in the face of the notorious occupation of the public lands in this State by her citizens, that upon those lands they have mined for gold, constructed canals, built saw-mills, cultivated farms, and practiced every mode of industry, has asserted no right of ownership to any of the mineral lands in this State.</p> <p>The State Government has not only acquiesced in this universal appropriation of the public lands for all these purposes, but has studiously encouraged them, in some instances, and recognized them in all; and this Court has held that the State, in her legislation on the subject, has established the policy of permitting all who wish, to work the mines, with or without conditions.</p> <p>Yet this permission has not been derived from express legislation, but by general legislation, looking at the general state of things, from which a license is necessarily presumed to all who choose to avail themselves of it.</p> <p>Among the other pursuits thus encouraged, and which have been referred to in legislative acts and been made the subjects of revenue, is the construction of ditches, canals and flumes, for the purpose of conducting water for mining purposes.</p> <p>This right, then, like digging gold, is a franchise, and the attending circumstances raise the presumption of a general grant from the sovereign, of this privilege; and every one who wishes to attain it has license from the State to do so,, provided that the prior rights of others are not infringed upon.</p> <p>As, from the nature of these works, time is necessary to complete them, the license would be valueless, if the right did not commence until their completion; and it must be presumed that, in granting the license, the State did not intend it should be turned into so va