Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring.
This is an action to recover damages for cutting timber on plaintiff’s land, and for an injunction against any future acts of the same kind. It appears that for several years prior and up to the commencement of this action, the plaintiff was in the possession of a tract of about one hundred acres of public land in one of the mineral districts, which he held under the possessory act of this State, the provisions of which he had fully complied with. He resided on the land with his family, and had put thereon valuable improvements, consisting of buildings, orchards, vineyards, ornamental trees, etc., at an expense of about 18,000. A portion of the tract was under cultivation, and the remainder in its wild state, a portion of the latter being covered with oak and pine trees. At several places on the ranch gold had been found and mining carried on, but not on those portions where the timber in controversy was cut. The defendants are miners, owning and working quartz claims. About two hundred feet of their quartz ledge is on plaintiff’s land, near the boundary line, and the ledge dips under plaintiff’s land at an angle of about forty-five degrees. The defendants also own and work a quartz mill, for the crushing of the rock from their claims, which is located near plaintiff’s land. The defendants are compelled to use wood to heat the water used in the amalgamatory process, in their mill, and they cut wood upon the plaintiff’s land, about twelve hundred feet from the claims, for this purpose, which constitutes the trespass complained of. Upon this state of facts the Court below rendered judgment for the defendants, from which the plaintiff appeals.
Under the laws of this State, any citizen of the United States may enter upon and hold an amount of the public domain, whether within the mineral districts or not, or whether containing mines or not, not exceeding one hundred and sixty acres. He has the right to occupy and improve it, cultivate the soil, plant orchards and vineyards, and apply it to such uses as he may deem most advantageous to himself. But his possession of the land for the common usual purposes of grazing and agriculture, is subordinate to the right of the miner, who, when acting in good faith, has the right to [453]*453enter upon any tract of land held by another merely for agricultural or grazing purposes, and to mine the same, doing no more injury to the premises than may be necessary to enable him to work the mine in the most practicable manner.
The policy of this State is “ to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner.” (Tartar v. The Spring Creek Water and Mining Co., 5 Cal. 395.) This right of possession is exclusive of all others, except the miner, who has the right to enter upon any tract of mineral land which may be occupied by another merely for agricultural or grazing purposes, and to locate his mining claim thereon, according to the usage and custom of miners—to pass and repass over the land in going to and from his claim; to dig up the soil, sink shafts, run tunnels, and do all other acts necessary and proper to enable him to work his claim efficiently, being careful to do no unnecessary injury to the land.
Such, in general terms, are the rights of the miner; but these rights are subject to limitations and restrictions, necessary to prevent an interference with rights of property vested in others, and which are entitled to equal protection with his own. Thus he has no right to use water to work his mine which has been appropriated to other legitimate purposes. (Irwin v. Phillips, 5 Cal. 140; Tartar v. The Spring Creek Water and Mining Company, Id. 395.) Nor has he a right to dig a ditch to convey water to his mine over land in the possession of another. (Burdge v. Underwood, 6 Cal. 45; Weimer v. Lowry, 11 Id. 104.) Nor can he mine land used for a residence and for purposes connected therewith. (Fitzgerald v. Urton, 5 Id. 308.) Or land used for houses, orchards, vineyards, gardens, and the like. (Smith v. Doe, 15 Id. 101; Gillan v. Hutchinson, 16 Id. 153.)
In Smith v. Doe (15 Cal. 101) the Court say: “ It must not be understood, however, that within the limits of the mines all possessory rights and all rights of property, not founded upon a valid legal title, are held at the mercy and discretion of the miner. Upon this subject it is impossible to lay down any general rule, but every case must be determined upon its own particular facts. Valuable [454]*454and permanent improvements, such as houses, orchards, vineyards, etc., should undoubtedly be protected; as also growing crops of every description, for these are as useful and necessary as the gold produced by the working of the mines. Improvements of this character, and such products of the soil as are the fruits of toil and labor, must be regarded as private property, and upon every principle of legal justice are entitled to the protection of the Courts.”
As was said in the case of Tartar v. The Spring Creek Water and Mining Company, “ the legislation and decisions have been uniform in awarding the right of peaceable enjoyment to the first occupant, either of the land or of anything incident to the land.” In that case, as also the case of Clark v. Duval (15 Cal. 85), the Court recognize the common law principle that the grant of the right to mine carried with it all the incidents necessary to that purpose ; that this included the use of the land and such elements of the freehold and inheritance, as wood, water, and the like, as were necessary for mining purposes. But in the former case the Court expressly says that “ there is nothing sufficiently expressive in the legislation of the State which warrants an interference with the already acquired rights of individuals, except in the single case of agricultural lands. So in Stokes v. Barrett (5 Cal. 36) the Court say, that “ to authorize an invasion of private property, in order to enjoy a public franchise, would require more specific legislation than any yet resorted to.” And in Gillan v. Hutchinson (16 Id. 153) it was held that the Legislature had no power to take the property of one person and give it to another, and therefore the Act of 1855, giving the miner the right to dig up an orchard, vineyard, garden, and crop of growing grain by tendering the owner a bond for the payment of all damages, was held invalid.
Such are some of the principles which this Court has laid down in determining the numerous questions which have arisen between the occupant of the public lands and the miner. While the rights of the latter have been sedulously guarded, the Court have been equally careful to protect the rights of the former from invasion. The question now before us has never yet been determined by this Court, but it is to be adjudicated in accordance with those fundamental principles regulating the rights of property, by which one [455]*455person is not permitted to take and hold that which belongs to another. The rule that priority of appropriation gives priority of right, must determine this as it has numerous other cases of the same class. The plaintiff in this case, by his prior occupation, acquired the right to the peaceable enjoyment of the land, which includes the trees growing thereon.
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Crocker, J. delivered the opinion of the Court—Cope, C. J. concurring.
This is an action to recover damages for cutting timber on plaintiff’s land, and for an injunction against any future acts of the same kind. It appears that for several years prior and up to the commencement of this action, the plaintiff was in the possession of a tract of about one hundred acres of public land in one of the mineral districts, which he held under the possessory act of this State, the provisions of which he had fully complied with. He resided on the land with his family, and had put thereon valuable improvements, consisting of buildings, orchards, vineyards, ornamental trees, etc., at an expense of about 18,000. A portion of the tract was under cultivation, and the remainder in its wild state, a portion of the latter being covered with oak and pine trees. At several places on the ranch gold had been found and mining carried on, but not on those portions where the timber in controversy was cut. The defendants are miners, owning and working quartz claims. About two hundred feet of their quartz ledge is on plaintiff’s land, near the boundary line, and the ledge dips under plaintiff’s land at an angle of about forty-five degrees. The defendants also own and work a quartz mill, for the crushing of the rock from their claims, which is located near plaintiff’s land. The defendants are compelled to use wood to heat the water used in the amalgamatory process, in their mill, and they cut wood upon the plaintiff’s land, about twelve hundred feet from the claims, for this purpose, which constitutes the trespass complained of. Upon this state of facts the Court below rendered judgment for the defendants, from which the plaintiff appeals.
Under the laws of this State, any citizen of the United States may enter upon and hold an amount of the public domain, whether within the mineral districts or not, or whether containing mines or not, not exceeding one hundred and sixty acres. He has the right to occupy and improve it, cultivate the soil, plant orchards and vineyards, and apply it to such uses as he may deem most advantageous to himself. But his possession of the land for the common usual purposes of grazing and agriculture, is subordinate to the right of the miner, who, when acting in good faith, has the right to [453]*453enter upon any tract of land held by another merely for agricultural or grazing purposes, and to mine the same, doing no more injury to the premises than may be necessary to enable him to work the mine in the most practicable manner.
The policy of this State is “ to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner.” (Tartar v. The Spring Creek Water and Mining Co., 5 Cal. 395.) This right of possession is exclusive of all others, except the miner, who has the right to enter upon any tract of mineral land which may be occupied by another merely for agricultural or grazing purposes, and to locate his mining claim thereon, according to the usage and custom of miners—to pass and repass over the land in going to and from his claim; to dig up the soil, sink shafts, run tunnels, and do all other acts necessary and proper to enable him to work his claim efficiently, being careful to do no unnecessary injury to the land.
Such, in general terms, are the rights of the miner; but these rights are subject to limitations and restrictions, necessary to prevent an interference with rights of property vested in others, and which are entitled to equal protection with his own. Thus he has no right to use water to work his mine which has been appropriated to other legitimate purposes. (Irwin v. Phillips, 5 Cal. 140; Tartar v. The Spring Creek Water and Mining Company, Id. 395.) Nor has he a right to dig a ditch to convey water to his mine over land in the possession of another. (Burdge v. Underwood, 6 Cal. 45; Weimer v. Lowry, 11 Id. 104.) Nor can he mine land used for a residence and for purposes connected therewith. (Fitzgerald v. Urton, 5 Id. 308.) Or land used for houses, orchards, vineyards, gardens, and the like. (Smith v. Doe, 15 Id. 101; Gillan v. Hutchinson, 16 Id. 153.)
In Smith v. Doe (15 Cal. 101) the Court say: “ It must not be understood, however, that within the limits of the mines all possessory rights and all rights of property, not founded upon a valid legal title, are held at the mercy and discretion of the miner. Upon this subject it is impossible to lay down any general rule, but every case must be determined upon its own particular facts. Valuable [454]*454and permanent improvements, such as houses, orchards, vineyards, etc., should undoubtedly be protected; as also growing crops of every description, for these are as useful and necessary as the gold produced by the working of the mines. Improvements of this character, and such products of the soil as are the fruits of toil and labor, must be regarded as private property, and upon every principle of legal justice are entitled to the protection of the Courts.”
As was said in the case of Tartar v. The Spring Creek Water and Mining Company, “ the legislation and decisions have been uniform in awarding the right of peaceable enjoyment to the first occupant, either of the land or of anything incident to the land.” In that case, as also the case of Clark v. Duval (15 Cal. 85), the Court recognize the common law principle that the grant of the right to mine carried with it all the incidents necessary to that purpose ; that this included the use of the land and such elements of the freehold and inheritance, as wood, water, and the like, as were necessary for mining purposes. But in the former case the Court expressly says that “ there is nothing sufficiently expressive in the legislation of the State which warrants an interference with the already acquired rights of individuals, except in the single case of agricultural lands. So in Stokes v. Barrett (5 Cal. 36) the Court say, that “ to authorize an invasion of private property, in order to enjoy a public franchise, would require more specific legislation than any yet resorted to.” And in Gillan v. Hutchinson (16 Id. 153) it was held that the Legislature had no power to take the property of one person and give it to another, and therefore the Act of 1855, giving the miner the right to dig up an orchard, vineyard, garden, and crop of growing grain by tendering the owner a bond for the payment of all damages, was held invalid.
Such are some of the principles which this Court has laid down in determining the numerous questions which have arisen between the occupant of the public lands and the miner. While the rights of the latter have been sedulously guarded, the Court have been equally careful to protect the rights of the former from invasion. The question now before us has never yet been determined by this Court, but it is to be adjudicated in accordance with those fundamental principles regulating the rights of property, by which one [455]*455person is not permitted to take and hold that which belongs to another. The rule that priority of appropriation gives priority of right, must determine this as it has numerous other cases of the same class. The plaintiff in this case, by his prior occupation, acquired the right to the peaceable enjoyment of the land, which includes the trees growing thereon. The defendants, in locating their mining claims, took it subject to the prior vested rights of the plaintiff. They took them subject to the rule of property laid down in Irwin v. Phillips (5 Cal. 140): “ The miner who selects a piece of ground to work must take it as he finds it, subject to prior rights, which have an equal equity on account of an equal recognition from the sovereign power. If it is upon a stream, the waters of which have not been taken from them bed, they cannot be taken to his prejudice; but if they have already been diverted, and for as high and legitimate a purpose as the one he seeks to accomplish, he has no right to complain—no right to interfere with the prior occupation of his neighbor, and must abide the disadvantages of his own selection.” The right of the plaintiff to cut and use the timber growing on the land for his own domestic purposes, is as high, if not higher, than that of the defendants to use it for mining purposes. If the defendants have located in a place where wood is difficult to procure, or where wood lands are held and occupied by others, that is one of the disadvantages of their selection from which the Courts cannot relieve them.
The defendants can claim no right to the timber under the laws of the United States. The Act of Congress of March 2d, 1831, prohibits all persons from cutting, destroying, or removing timber on any of the lands of the United States, except for the use of the navy, and prescribes a fine of not less than triple the value of the trees or timber so cut, destroyed, or removed, and imprisonment not exceeding twelve months, as a punishment for those who violate the provisions of the law. And, in the case of Cotton v. The United States (11 How. U. S. 229), it was held, that the United States have the right to bring an action of trespass against a person for cutting and carrying away trees from the public lands. The public mineral lands of this State belong to the ¡National Government, which has the full power of disposing of the land and the timber [456]*456growing thereon in such manner as it may deem proper. Congress, in the exercise of this power, has authorized the settlement and occupation of the public lands, but has expressly prohibited the cutting or destruction of the timber growing thereon. The defendants cannot, therefore, claim that the laws of the United States protect them in their acts. They were, in. our judgment, trespassers in cutting and carrying away the trees growing on the land.
The judgment is reversed, and the Court below is directed to enter a judgment in accordance with this opinion. )