Gillan v. Hutchinson

Citations

• 16 Cal. 153
• 1860 Cal. LEXIS 193

Syllabus

<p>The Act of April 25th, 1855, for the protection of growing crops and improve-. ments in the mining districts of this State, so far as it purports to give a right of entry upon the mineral lands of this State, in cases where no such right existed anterior to its passage, is invalid.</p> <p>The Legislature has no power to take the property of one person and give it to another; nor can private property be taken for public use, unless compensation to the owner precede or accompany the taking.</p> <p>This Act of 1855 seems to proceed upon the idea of an absolute and unconditional right in the miner to enter upon the possessions of another for mining purposes, and the intention of the act was to limit this supposed right, and not to give a right of entry in cases where no such right previously existed.</p> <p>Miners have no such absolute and unconditional right. The true rule is laid down in Smith v. Doe (15 Cal).</p> <p>The defense relied on in the answer in this case being invalid, it was not error to refuse permission to amend after judgment sustaining a demurrer to the answer. Besides, the allowance of the amendment was matter of discretion, for the abuse of which only could this Court interfere.</p>