§ 83. Miners' regulations and rules recognized by, and crystallized into, statute.— These regulations and customs were appealed to in controversies in the state courts, and received their sanction to the extent that properties to the value of many millions of dollars were dependent upon them for title and right of possession for eighteen years. From 1848 to 1866 the regulations and customs of the miners, consisting of the great body of miners' rules which we have mentioned, as interpreted and enforced by the courts and sanctioned by the legislation of the state, so far as lay in the power of the legislature, on the subject, constituted the law governing the property to mines and the water rights used in connection therewith. It is matter of history, already pointed out, that until 1866, excluding two unimportant provisions, which will be noticed in the next chapter, no legislation was had looking to the sale of the mineral lands. The policy of the country had previously been, as already shown, to exempt such land from sale.1 And this legislation, as must appear from the foregoing, was largely moulded upon these customs and rules.2 1 Jennison v. Kirk, 98 U. S. 453. 2 Morr. Min. Rights (8th ed.), p. 4. See also ante, § 59. CHAPTER IV. OF THE IMPLIED LICENSE TO OCCUPY MINERAL LANDS AND THE EQUITIES GROWING OUT OF SUCH POSSESSION. $86. Review of the situation-Governmental policy. 87. Judicial recognition in California nored. Miners' rights not to be ig 88. Judicial knowledge of miners' rights. 89. This equitable right was equivalent to a franchise. 90. Necessity of framing a judicial policy - Miners impliedly the licensees of the United States. 91. Recognized by the supreme court of the United States. 92. First recognition of miners' possessory rights and miners' rules by federal legislation. 93. The evolution of governmental policy - Further recognition of local rules by statute. 94 Summary. had $86. Review of the situation-Governmental policy.It will be observed by the preceding sections that a system sprung up in California unique in all its environments. The United States, which owned the land in which the mines were found, had provided no legislation protecting miners in the enjoyment of them, nor authorizing the working thereof. On the contrary, the policy of the government, so far as expressed in its legislation and the decisions of the courts, was inimical to the operation of the mines. But, while this was true in an express sense, by implication and non-resistance at least, the policy was fast slipping away and being supplanted by another, which, tacitly at least, licensed such use of the mines. § 87. Judicial recognition in California-Miners' rights not to be ignored.-This system, moreover, was engaging and employing a large amount of capital and producing a vast amount of wealth in the output of gold. Rights had to be recognized and protected by something stronger than the mere rules of the miners, resting only upon consent on the one hand, and a sort of lawless might upon the other. The courts, with the elastic possibilities of the common law,' stretched forth their strong arms and protected this quasiright secured or asserted by the miners and protected them in their possession. § 88. Judicial knowledge of miners' rights, but not of miners' rules. In an early case Judge Heydenfeldt, speaking for the court, at page 146 says: "Courts are bound to take notice of the political and social condition of the country which they judicially rule. In this state a large part of the territory consists of mineral lands, nearly the whole of which are the property of the public. No right or intent of disposition of these lands has been shown either by the United States or the state governments. And with the exception of certain state regulations, very limited in their character, a system has been permitted to grow up, by the voluntary action and assent of the population, whose free and unrestrained occupation of the mineral region has been tacitly assented to by the one government and heartily encouraged by the express legislative policy of the other. If there are, as must be admitted, many things connected with this system which are crude and undigested and subject to fluctuation and dispute, there are still some which a universal sense of necessity and propriety have so firmly fixed as that they have come to be looked upon as having the force and effect of res judicata. Among these are the rights of miners to be protected in their selected localities." Perhaps no quarrel should be made as to the extent of judicial knowledge asserted as the basis of the foregoing opinion, but that is the limit of judicial knowledge as applied to 1 Conger v. Weaver, 6 Cal. 548. 2 Irwin v. Phillips, 5 Cal. 140. See also Tartar v. Spring Creek W. & M. Co., 5 Cal. 395; Hoffman v. Stone, 7 Cal. 46; Merced Min. Co. v. Fremont, 7 Cal. 317; Gold Hill Q. M. Co. v. Ish, 5 Oreg. 104, 11 M. R. 635. mining law. Regarding the miners' rules themselves, the local laws of the district or the records of miners' meetings, it is well settled that they must all be proven as facts; and no rule or district law will be presumed or assumed to exist which is not proven.1 $89. This equitable right was equivalent to a franchise. Moreover, this silent acquiescence was in principle closely allied to the granting of a franchise. It is unnecessary to assert any such preposterous principle as an estoppel against the government. We need only resort to the principles of the common law, under which comprehensive system we find the doctrine of presumptions stepping in to aid us, whereby, except as against the paramount proprietor, the government, a grant would be presumed. As was said by the supreme court of California in an early very able case: "That new conditions and new facts may produce the novel application of a rule which has not been before applied in like manner does not make it any less the common law, for the latter is a system of grand principles founded upon the mature and perfected reason of centuries. It would have but little claim to the admiration to which it is entitled if it failed to adapt itself to any condition, however new, which may arise; and it would be singularly lame if it is impotent to determine the right of any dispute whatsoever. Having, as far as we have gone, met all difficulties. by adhering to its doctrines, we have no ground to presume that we will have to go beyond its precincts for a solution of any which may arise. 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." Since, therefore, a grant of any kind may be presumed, the supreme court of Oregon, speaking of the right to occupy and work mining 1See post, § 123. 2 Conger v. Weaver, 6 Cal. 548556. See also Eldridge v. Knott, Cowp. 215; Goodtitle d. Parker v. claims, was right in announcing the doctrine that a franchise would be presumed.1 3 § 90. Necessity of framing a judicial policy — Miners impliedly the licensees of the United States. The necessity of thus framing and promulgating a judicial policy was daily made more positive and exacting. The miners were there in possession of their mining claims, and it were a shocking commentary on the common law if adequate means and authority were not found therein to protect such possession. Contrary, then, to the expression of former decisions, the silence of the United States, its laissez faire policy, justified the conclusion several times reached by western courts, as we have already seen, that the occupants were the licensees of both governments. We notice this policy for the reason that the same questions may again arise in some parts of the domain of the United States. Not only was it true that there was no law of the United States forbidding the miners from taking possession of the mining claims, working them and extracting and appropriating to their own use the precious metals therein contained, but on the contrary, the government, with at least the judicial knowledge spoken of by Judge Sanderson in a previous section, by its silence encouraged the continuation of the enterprise. Moreover, the courts of both governments (state and federal) protected these possessions and possessory rights and treated them for the purposes of particular suits, which was sufficient for the occasion, as having all the attributes of fixed property rights. A party thus in possession could sustain any and all actions necessary to protect the property for the time being; a trespasser could not do this. The possessor was therefore considered the favored licensee of both govern 1 Gold Hill Q. M. Co. v. Ish, 5 Oreg. 104. See also Conger v. Weaver, infra; Hill v. King, 8 Cal. 336, 338; McKeon v. Bisbee, 9 Cal. 137, 142; Partridge v. McKinney, 10 Cal. 181, 183; State v. Moore, 12 Cal. 70; Curtis v. Sutter, 15 Cal. 2 3 United States v. Gear, 3 How. 120, 11 L. ed. 523. |