Burdge v. Underwood
California Supreme Court
Appeal from the District Court of the Eleventh Judicial District, County of Placer. The plaintiff brought his action to abate a nuisance in digging a ditch through plaintiff's enclosure, and for damages. The defence set up is that the ditch was made to conduct water for mining purposes, and that the land is public land, only occupied by plaintiff for agricultural and grazing purposes.
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Appeal from the District Court of the Eleventh Judicial District, County of Placer. The plaintiff brought his action to abate a nuisance in digging a ditch through plaintiff's enclosure, and for damages. The defence set up is that the ditch was made to conduct water for mining purposes, and that the land is public land, only occupied by plaintiff for agricultural and grazing purposes. By the finding of the Court, it appears that in 1852 the plaintiff took up a tract of public land, which he has ever since used for agricultural and grazing purposes. “ That within the time allowed by law, and…
1Opinion of the Court
The opinion of the Court was delivered by Mr. Justice Heydenfeldt.
Mr. Justice Terry concurred.
In Stokes v. Barnett, 5 Cal. R., McClintock v. Bryden, Ib., and Irwin v. Phillips, Ib., we decided that the prior possessory rights of settlers on the public lands for agricultural and grazing purposes, must yield to the rights of miners to extract from the land the precious metals. This was a necessary deduction from the statute, which expressly makes the distinction. But this statute cannot be extended by construction. If so, it would require us to overturn other well defined and settled…
2Cited by7 opinions
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- Calhoun v. Superior CourtCalifornia Supreme Court · 1955
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