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must be made to rest upon some other foundation than that of positive law. Hence the courts—in order to protect the vast interests which had grown up under the mining systems, and to give legal sanction to the rights thus acquired-invoked the common-law doctrine of presumption, and implied, from all the circumstances, a license from the United States to the appropriator of water, commensurate with any rights which he could justly claim. Thus it is said: “From a very early day the courts of this state have considered the United States government as the owner of running waters on the public lands of the United States, and of their beds. Recognizing the United States as the owner of the lands and waters, and as therefore authorized to permit the occupation or diversion of the waters as distinct from the lands, the state courts have treated the prior appropriator of water on the public lands of the United States as having a better right than a subsequent appropriator, on the theory that the appropriation was allowed or licensed by the United States."

§ 23. Grounds for presumption of license.

If we inquire as to the grounds on which this presumption of a license from the government is built, we shall find the question satisfactorily answered in an early decision of the California supreme court. It was observed by a learned judge: “One of the favorite and much-indulged doctrines of the common law is the doctrine of presumption. Thus, for the purpose of settling men's differences, a presumption is often indulged where the fact presumed cannot have existed. In support of this proposition I will refer to a few eminent authorities. * * * In these cases presumptions were indulged against the truth, - presumptions of acts of parliament and grants from

1 Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 721. LAW W. R. -3


the crown. It is true the basis of the presumption was length of time, but the reason of it was to settle disputes, and to quiet the possession. If, then, lapse of time requires a court to raise presumptions, other circumstances which are equally potent and persuasive must have the like effect for the purposes of the desired end; for lapse of time is but a circumstance or fact which calls out the principle, and is not the principle itself. Every judge is bound to know the history, and the leading traits which enter into the history, of the country where he presides. . This we have held before, and it is also an admitted doctrine of the common law. We must therefore know that this state has a large territory; that upon its acquisition by the United States, from the sparseness of its population, but a small comparative proportion of its land had been granted to private individuals; that the great bulk of it was land of the government; that but little as yet has been acquired by individuals by purchase; that our citizens have gone upon the public lands continuously from a period anterior to the organization of the state government to the present time. Upon these lands they have dug for gold; excavated mineral rock; constructed ditches, Humes, and canals for conducting water; built mills for sawing lumber and grinding corn; established farms for cultivating the earth; made settlements for the grazing of cattle; laid off towns and villages; felled trees; diverted water-courses; and, indeed, have done, in the various enterprises of life, all that is useful and necessary in the high condition of civilized development. All of these are open and notorious facts, charging with notice of them not only the courts who have to apply the law in reference to thenı, but also the government of the United States, which claims to be the proprietor of these lands, and the government of the state within whose sovereign jurisdictiou they exist. In the face of these notorious facts the government of

. the United States has not attempted to assert any right of ownership to any of the large body of lands within the mineral region of the state. The state government has not only looked on quiescently upon this universal appropriation of the public domain for all of these purposes, but has studiously encouraged them, in some instances, and recognized them in all. Now, can it be said, with any propriety of reason or common sense, that the parties to these acts have acquired no rights? If they have acquired rights, these rights rest upon the presumption of a grant of right, arising either from the tacit assent of the sovereign, or from expressions of her will in the course of her general legislation, and, indeed, from both. Possession gives title only by presumption. Then, when the possession is shown to be of public land, why may not any one oust the possessor? Why can the latter protect his possession? Only upon the doctrine of presumption, for a license to occupy froin the owner will be presumed.”l

At the same time it must be remembered that there was never any license, in fact, from the government to the miners on the Pacific coast to work the mines. Congress had adopted no specific action on the subject. The supposed license consisted in the forbearance of the government; any other license would rest in mere assertion, and would be untrue in fact and unwarranted in law.?


§ 24. Efficacy of miners' customs.

It may not be inappropriate to add a few words to the account given by our author of the origin and nature of “mining customs."

It is said by the court in California: “It has always been held that local regulations, etc., accepted by the miners of a particular district, are binding only as to possessory rights

Conger v. Weaver, 6 Cal. 556, 557.

2 Boggs v. Merced Min. Co., 14 Cal. 35.). Supra, $ 14.



within the district, and that they must be proved as a fact. When they have been proved, the courts have considered them only for the purpose of ascertaining the extent and boundaries of the alleged possessions of the respective parties, and the priority of possessory right as between them, or for the purpose of ascertaining whether the right of action has been lost or abandoned by failure to work and occupy in the manner prescribed. When the priority, limits, and continuation of a possession have thus been ascertained, the courts have proceeded to apply the presumption of a grant from the paramount source,-a presuniption, we repeat, sustainable on common-law principles.' The principal efficacy of the mining customs, then, is this: that, where any local mining custom exists, controversies affecting a mining right must be solved and determined by the rules and usages of the bar or diggings embracing the claim to which such right is asserted or denied, whether such customs or usages are written or unwritten. Legislation, it is added, could not entirely supplant the force of these customs. They are of a different character from common-law customs; for the latter must be of immemorial tradition. But a custom or usage is void whenever it falls into disuse, or is generally disregarded. The existence of mining rules and customs is a question of fact; and it is further required that they should be reasonable.

In Oregon, it is held that where a plaintiff alleges a right to appropriate water under a local custom, and such allegation is denied, be must prove the custom and a compliance therewith. The courts will not take judicial notice of local customs concerning water rights. Hence, to claim and hold water appropriated under a local custom, such as is recognized by the act


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*Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 748.

3 Harvey v. Ryan, 42 Cal. 626.

2 Morton v. Solambo Copper M. Co., 26 Cal. 527.

4 King v. Edwards, 1 Mont. 235. And see Irwin v. Phillips, 5 Cal. 140, 8. c. 63 Amer. Dec. 113.


of congress of 1866, the claimant must allege and prove a custom such as is named in that act. In Arizona, on the other hand, the courts take judicial notice, without proof, of the "local customs, laws, and decisions of courts" relating to water rights, as these terms are used in the federal statute referred to.?

It remains to be added that the mining customs are recognized as valid and binding only when they are not in conflict with any constitutional or statutory provision, either of the state or the United States. Thus, no custom of miners could legalize those effects of the system of hydraulic mining which have come to be regarded by the courts as a public nuisance. On this point it is said: “A custom or usage attempted to be established, whereby mining debris might be sent down to the valleys, devastating the lands of private owners, holding titles in fee from the Mexican government, as old as the title of the United States, without first acquiring the right to do so by purchase or other lawful means, upon compensation paid, would be in direct violation both of the laws and constitution of the state and of the constitution of the United States. Instead of being authorized by the statute, it would be in direct violation of the statute. It would also be in direct violation of the express provisions of the statutes defining nuisances.”']

1 Lewis v. McClure. 8 Oreg. 273.

2 Clough v. Wing, (Ariz.) 17 Pac. Rep. 453.

8 Code Civil Proc. Cal. & 748, and

St. 1851, p. 149, § 621. See, also,
Rev. St. U. S. SS 2319, 2324.

4 Woodruff v. North Bloomfield G. M. Co., 9 Sawy. 441, 8. c. 18 Fed. Rep. 801.


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