been committed, and that there is sufficient cause to believe the within-named A. B. guilty thereof, I order that he be held to answer the same. If the offence be not bailable add: and that he be committed to the sheriff of the county of ; or, if bail

until

able, add: and that he be admitted to bail in the sum of and be committed to the sheriff of the county of he gives such bail; or, if he have given bail, add: and I have admitted him to bail to answer by the recognizance hereto annexed.] Dated, June 1, 1859. M. N.,

Justice of the Peace of the County of

Application to enter a Person at the Industrial School, San Francisco.

Office of the President of the Board of Supervisors of the City and County of San Francisco, May 1, 1859.

To the Hon. H. P. Coon, Police Judge:

Whereas, it has been represented to me that John Cox, a boy under the age of eighteen years, whose parents are dead, is leading an idle and dissolute life, and that he is a proper person for the industrial school,

Therefore, I pray your honor to cause the said John Cox to be brought before you, to the end that he may be duly committed to the charge of the board of managers of the industrial school department of said city and county. E. W. BURR, President Board of Supervisors.

Order of Arrest, to send a Boy to the Industrial School, San Francisco.

Chambers of the Police Judge.

State of California,

City and County of San Francisco. }

The people of the state of California, to any sheriff, constable, marshal, or policeman in the city and county of San Francisco: It appearing from an application laid before me by M. J. Burke, Esq., chief of police of the city and county aforesaid, that there is sufficient cause to believe that John Cox, a boy under the age of eighteen years, whose parents are dead, is leading an idle and dissolute life, you are commanded forthwith to arrest the said John Cox and bring him before me, at the chambers of the police judge, in the city and county aforesaid. Dated at my office, this first day of May, 1859.

H. P. COON,

Police Judge of the City and County of San Francisco. Served by arresting the said John Cox, this second day of May, 1859. B. S. BLITZ, Policeman.

An order having been made on the first day of June, 185 by M. N., justice of the peace of the county of that A. B. be held to answer upon the charge of grand larceny, upon which he has been duly admitted to bail in the sum of one thouand dollars, we, O. P. and Q. R., of the said county, hereby undertake that the above-named A. B. shall appear and answer the charge above mentioned, in whatever court it may be prosecuted, and shall at all times hold himself amenable to the orders and process of the court, and if convicted, shall appear for judgment, and render himself in execution thereof; or, if he fail to perform either of these conditions, that he will pay to the people of the state of California, the sum of one thousand dollars. Witnessed and approved by me, Į

this 2d day of June, 1859.

M. N., Justice of the County of

O. P.

Q. R.

O. P. and Q. R. being duly sworn, each for himself deposes and says, that he is a freeholder [or, householder] in said state of California, and that he is worth the sum of one thousand dollars, exclusive of property exempt from execution, and over and above all debts and liabilities.

Sworn and subscribed before me,

this 2d day of June, 1859.

}

M. N., Justice, &c.

Commitment.

State of California,

County of

Justices' Court of the County of

The people of the state of California to the sheriff of the county of

:

An order having been this day made by me, that John Cox be held to answer upon a charge of grand larceny committed in said county, on or about the day of May, 1859, you are

commanded to receive him into your custody, and detain him until he be legally discharged. Dated at the county of

1859.

this tenth day of June, A. D.

M. N., Justice of the Peace of the county of

Commitment to Industrial School San Francisco.

State of California,

City and County of San Francisco,

The people of the state of California, to the superintendent of the industrial school of the city and county of San Francisco: Whereas, an application has been made to me by M. J. Burke, Esq., chief of police, of said city and county, setting forth that John Cox, a boy under the age of eighteen years, whose parents are dead, is leading an idle and dissolute life, and praying for the arrest of said John Cox, and said John Cox having been brought before me, and the matter having been heard, and evidence having been given to my satisfaction, and an order having been made by me that he be committed to the industrial school of the city and county of San Francisco,

You are commanded to receive the said John Cox into your custody, and him safely keep until he be legally discharged. Dated at the city and county of San Francisco, this third day of May, 1859. H. P. COON, Police Judge of the city and county of San Francisco.

CHAPTER XXIX.

MINES, MINING, AND WATER RIGHTS.

I. THE RIGHT OF THE STATE IN THE MINES.

By the English common law, mines of gold and silver were the exclusive property of the crown, and a royal grant of lands did not pass the title to the mines of the precious metals therein. Even the mines discovered upon private lands were claimed by the crown in virtue of its prerogative, together with the right to dig and carry away the minerals, and to do all things necessary to the exercise of that right.'

In this country it seems to have been considered that the several states of the Union, and not the federal government, are, in virtue of their respective sovereignties, entitled to those "royal rights," including the right of eminent domain, and the title to the mines of gold and silver, which by the English common law pertained to the crown. According to this doctrine, the United States has no municipal sovereignty within the limits of the several states.

In some of the states, as in New York, this exclusive and sovereign right of the state has been expressly asserted and defined by statute. In others, where no positive law of the kind existed, the courts have declared it as a common law doctrine. The latter is the case in California, the Supreme Court having laid down the doctrine that the state is entitled to all the rights in mines of gold and silver enjoyed by the crown under the common law; that such mines upon the public lands within this state belong, not to the United States, but to the state of California; and that the United States, in its ownership of the public lands, occupies the same position as a private proprietor, with the exception of an express exemption from state taxation; that the state has the

1 Blackstone, vol. i. p. 295; Collier on Mines, p. 13.

exclusive right to authorize the mines to be worked, to pass laws for their regulation, to license miners, and to affix such terms and conditions as she may deem proper to the freedom of their use."

II. THE RIGHTS OF MINERS.

The legislation of the state and the adjudications of the courts bearing upon the subject of mining, and based upon the right thus claimed, have given and confirmed the privilege of working the mines of gold and silver upon the public lands to all who desire it, subject to certain conditions and regulations.

With reference to mines of gold and silver found on the lands of private individuals, although the state claims to be the owner of such mines, it has not dedicated the right to work them to its citizens. The privilege conferred extends only to the public lands."

The nature and extent of the rights enjoyed by those who avail themselves of the permission of the state to prosecute the search for the precious metals upon the public lands within this state, will now be treated of in detail.

1st.-The Right to Mine upon Lands occupied for Grazing or Agricultural Purposes.

It has been the policy, both of the general and state government, to reserve mining lands from settlement for agricultural purposes. The person who settles upon such lands does so subject to the rights of the miners, who may, notwithstanding such prior occupation and possession, proceed to extract the metals which may be found there, and may use all necessary means for that purpose, but with the least injury and damage practicable to the occupying claimant; the spirit and policy of the law being apparently to make the right of the agriculturist to use and enjoy the public lands, subordinate to the right of the miner to search for gold.'

Section first of the act of April, 1852, "presenting the mode of maintaining and defending possessory actions on public lands in this state," clearly gives permission to all persons to work the

1 Hicks

Bell, 3 Cal. R. 219; Stokes v Barrett, 5 Cal. R. 36.

Stokes v. Barrett, 5 Cal. R. 3.

3 McClintock v. Bryden, 5 Cal. 97; Tartar v. Spring Creek Co., 5 Cal. 395; Burdge v. Underwood, 6 Cal. 45.