Mr. Justice Heydenfeldt delivered the opinion of the Court.
Mr. Justice Terry concurred. Mr. Chief Justice Murray dissented.
It is admitted in the argument, on both sides, that the rights claimed by both parties are in and to the public lands, neither of them having title, except what arises from possession, or the claim of it.
In the decisions we have heretofore made upon the subject of private rights to the public domain, we have applied simply the rules of the common law. We have found that its principles have abundantly sufficed for the determination of all disputes which have come before us; and we claim that we have neither modified its rules, nor have we attempted to legislate upon any pretended ground of their insufficiency.
That new conditions and new facts may produce the novel application [556]*556of 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 beyonds 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. In support of this position, I will refer to a few eminent authorities.
In Eldridge v. Knott, Cowper, 215, Lord Mansfield says: “ Lord Coke says, somewhere, that an Act of Parliament may be presumed, and of late it has been held that even in the case of the crown, which is not bound by the statutes, a grant may be presumed from great length of possession. It was so done in the case of the corporation of Hull & Horner; not that, in such cases, the Court really thinks such a grant has been made, because it is not probable a grant should have existed without its being on record, but they presume the fact for the purpose, and from a principle, of quieting the possession.”
See, also, Goodtitle v. Parker, 11 East., and Granger v. Scott, 6 Man.
In these cases, presumptions were indulged against the truth—presumptions of Acts of Parliament and grants from the crown. It is true, the basis of the presumption was length of time, but the reason of it was to settle the dispute 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 in 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 also is 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, flumes and canals for conducting water; built mills for sawing lumber and grinding corn; established farms for cultivating the earth; made settlements for the grazing [557]*557of cattle; laid off towns and villages; felled trees; diverted water courses; and, indeed, have done, in the various enterprises of life, all that is usual and necessary in a 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 them, 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 jurisdiction 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 doctrine of 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 from the owner will be presumed.
In the case of Hicks v. Bell, 3 Cal. R., speaking of this State’s ownership of her gold mines, this Court said: “ In her legislation upon this subject, she has established the policy of permitting all who desire it to work her mines of gold and silver, with or without conditions.”
Yet there was not at that time, nor has there been since, any act of the Legislature directly conferring the privilege of working the mines, except in cases of foreigners, who were required to obtain and pay for a license to do so.
How, then, was the permission derived? The answer is evident. Her general legislation, looking at the existence of this state of things, and referring to it, necessarily presumed a license—a license to every one who chose to possess himself of the franchise.
Now, also, ever since the organization of the State, among the other various enterprises which have been undertaken upon the public lands, is that which is brought in question in the case before us—the construction of ditches, flumes, and canals, for the purpose of conducting waters from their natural channels to supply the wants of gold miners.
In like manner, as in other pursuits, the State Government has looked on the progress of these works for the past seven years, until their extent has reached hundreds of miles, and every important stream in the State has been tapped by them—has referred to them in various [558]*558legislative acts, and has annually made them, the subject of revenue to the State.
In Irwin v. Philips, 5 Cal. R., we canvassed the action and non-action of the State upon this subject, and derived from her course by the rule of presumption, a positive right in the constructors and owners of these works to hold and enjoy them as property—a vested right which cannot be taken away.
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Mr. Justice Heydenfeldt delivered the opinion of the Court.
Mr. Justice Terry concurred. Mr. Chief Justice Murray dissented.
It is admitted in the argument, on both sides, that the rights claimed by both parties are in and to the public lands, neither of them having title, except what arises from possession, or the claim of it.
In the decisions we have heretofore made upon the subject of private rights to the public domain, we have applied simply the rules of the common law. We have found that its principles have abundantly sufficed for the determination of all disputes which have come before us; and we claim that we have neither modified its rules, nor have we attempted to legislate upon any pretended ground of their insufficiency.
That new conditions and new facts may produce the novel application [556]*556of 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 beyonds 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. In support of this position, I will refer to a few eminent authorities.
In Eldridge v. Knott, Cowper, 215, Lord Mansfield says: “ Lord Coke says, somewhere, that an Act of Parliament may be presumed, and of late it has been held that even in the case of the crown, which is not bound by the statutes, a grant may be presumed from great length of possession. It was so done in the case of the corporation of Hull & Horner; not that, in such cases, the Court really thinks such a grant has been made, because it is not probable a grant should have existed without its being on record, but they presume the fact for the purpose, and from a principle, of quieting the possession.”
See, also, Goodtitle v. Parker, 11 East., and Granger v. Scott, 6 Man.
In these cases, presumptions were indulged against the truth—presumptions of Acts of Parliament and grants from the crown. It is true, the basis of the presumption was length of time, but the reason of it was to settle the dispute 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 in 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 also is 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, flumes and canals for conducting water; built mills for sawing lumber and grinding corn; established farms for cultivating the earth; made settlements for the grazing [557]*557of cattle; laid off towns and villages; felled trees; diverted water courses; and, indeed, have done, in the various enterprises of life, all that is usual and necessary in a 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 them, 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 jurisdiction 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 doctrine of 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 from the owner will be presumed.
In the case of Hicks v. Bell, 3 Cal. R., speaking of this State’s ownership of her gold mines, this Court said: “ In her legislation upon this subject, she has established the policy of permitting all who desire it to work her mines of gold and silver, with or without conditions.”
Yet there was not at that time, nor has there been since, any act of the Legislature directly conferring the privilege of working the mines, except in cases of foreigners, who were required to obtain and pay for a license to do so.
How, then, was the permission derived? The answer is evident. Her general legislation, looking at the existence of this state of things, and referring to it, necessarily presumed a license—a license to every one who chose to possess himself of the franchise.
Now, also, ever since the organization of the State, among the other various enterprises which have been undertaken upon the public lands, is that which is brought in question in the case before us—the construction of ditches, flumes, and canals, for the purpose of conducting waters from their natural channels to supply the wants of gold miners.
In like manner, as in other pursuits, the State Government has looked on the progress of these works for the past seven years, until their extent has reached hundreds of miles, and every important stream in the State has been tapped by them—has referred to them in various [558]*558legislative acts, and has annually made them, the subject of revenue to the State.
In Irwin v. Philips, 5 Cal. R., we canvassed the action and non-action of the State upon this subject, and derived from her course by the rule of presumption, a positive right in the constructors and owners of these works to hold and enjoy them as property—a vested right which cannot be taken away.
In that and several subsequent cases we have recognized their right to appropriate the water, to divert it from its natural channel, where no riparian rights intervened, and to be protected in its use, in its pure and natural condition, against all subsequent efforts to divert or injure it.
This right, then, like that of digging gold, is a franchise; 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 the prior rights of others are not interrupted.
But, from the nature of these works, it is evident that it requires time to complete them, and from their extent, in some instances, it would require much time; and the question now arises at what point of time does the right commence, so as to protect the undertaker from the subsequent settlements or enterprises of other persons. If it does not commence until the canal is completed, then the license is valueless, for after nearly the whole work has been done, any one, actuated by malice or self-interest, may prevent its accomplishment; any small squatter settlement might effectually destroy it.
But I apprehend that, in granting the license which we have presumed for the purpose before us, the State did not intend that it should be turned into so vain a thing, but designed that it should be effectual for the object in view; and it consequently follows that the same rule must be applied here to protect this right as in any other.
Possession and acts of ownership are the usual indications of a right of property, and these must be judged according to the nature of the subject matter.
One is in possession of an empty house who has the key of its door in his pocket; of a horse, when he is riding it; of cattle pasturing upon his grounds; so a miner, who has a few square feet for his mining claim which he cannot directly occupy, has possession, because he works it, or because he has staked it off to work it, if his acts show no intention to abandon; building a dam, is taking possession of water as a usufruct.
So, in the case of constructing canals, under the license from the State, the survey of the ground, planting stakes along the line, and actually commencing and diligently pursuing the work, is as much possession as the nature of the subject will admit, and forms a series of acts of ownership which must be conclusive of the*right.
It is true, as is contended by the appellants, the defendants might have enclosed the ground which they needed for the digging of their [559]*559canal; but enclosure was not necessary for the work, it would give them no higher rights, and it would have been no more notice than the plaintiffs already had received. Lex non cogit ad vana is another maxim of the common law.
But it is urged that in completing the canal or flume in question, the defendants diverged a little from their original surveyed line, at the point where it passed through the lot claimed by the plaintiffs, and that, therefore, this was an injury for which they were aj; least entitled to nominal damages. This position is not correct. Either line passed through the same lot. The defendants had the right to go upon the lot and erect their flume through it; there was, therefore, no trespass, and if the divergence was no actual injury to the plaintiffs, it was damnum absque injuria, and the Court below properly instructed the jury on that point.
There are other assignments of error, but these we have already considered are conclusive of the merits of the case; and the others, even if well assigned, can have no effect in changing the result.
Judgment affirmed.