The act of July 26, 1866, the amendatory act of 1870, and the act of 1872, should be construed together, and the three acts are only intended to fix the rights of ditch owners and the owners of mining claims, as they then stood, by local customs and the decisions of our courts.
For more than twenty years this court has, by a long and unbroken series of concordant decisions (so numerous and harmonious, indeed, that special citation would be a work of supererogation), settled the question here of vested and accrued rights as between plaintiff and defendant. We only cite a passage from the opinion rendered in Crandall v. Woods (8 Cal. 143), which was rendered in 1857, as a fair expression and type of the whole. Chief Justice Murray, who delivered the opinion of this court, said: " One who locates upon public lands with a view of appropriating them to his own usebecomes the absolute owner thereof as against every one but the Government, and is entitled to all the privileges and incidents which appertain to the soil, subject to the single exception of rights antecedently acquired. * * * If he admits that he is not the owner of the soil, and that the fact is established that he acquired his rights subsequent to those of others, then, as both rest alike for their foundation upon appropriations, the subsequent locator must take subject to the rights of the former, and the rule qui prior est in tempore potior est in jure must apply." No decisions of this court of contrary import to the above can be found.
JUDGES: Mr. Justice Rhodes expressed no opinion.
OPINION By the Court:
Appellant urges that he should have had judgment, in accordance with the prayer of his complaint, under an act of Congress entitled " An Act granting the right of way to ditch and canal owners," approved July 26, 1866, and an act amendatory thereof, approved July 9, 1870.
The provisions of the statutes referred to and of the " Act to promote the development of the mineral resources of the United States," approved May 10, 1872, should be considered and construed together; and it is apparent that it was the purpose of the legislation, taken as a whole, to recognize in, and confirm to, the respective classes of licensees therein mentioned the same rights which were accorded to them by the State courts prior to the passage of the acts of Congress.
There is nothing in the ninth section of the act of 1866 which requires of us to hold that the defendant's right to possess and enjoy his mining claim must be subordinated to the right of plaintiff to construct his ditch. The clause in the ninth section, " and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed," cannot be construed to enlarge the grant to ditch owners, so as to include a right not " recognized and acknowledged by the local customs, laws and the decisions of the courts." Nor does the proviso authorize the construction of a ditch or canal across the mining claim of another, whatever may be its effect in respect to " settlers" on agricultural lands of the United States.
Judgment and order affirmed.