Water Use Laws
Irwin v. Phillips – California, 1855 (5 Cal. 140); Bear River & Auburn Water & Mining Co. v. New York Mining Co. – California, 1857 (8 Cal. 327); Gillan v. Hutchinson – California, 1860 (16 Cal. 153)
“The judiciary of this State has had thrown upon it responsibilities not incurred by the Courts of any other State in the Union. In addition to those perplexing cases that must arise… in putting into practical operation, a new const and a new code of statutes, we have had a large class of cases unknown in the jurisprudence of our sister States. The mining interest of the State has grown up under the force of new and extraordinary circumstances, and in the absence of any specific and certain legislation to guide us. Left without any direct precedent, as well as without specific legislation, we have been compelled to apply to this anomalous state of things the analogies of the common law, and the more expanded principles of equitable justice.” – Justice Peter Burnett, in Bear River “As a general rule, the public mineral lands of this state were open to the possession and occupancy of every person desiring, in good faith, to enter upon the same for mining purposes … [but] valuable and 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.” – Justice Warner Cope, in Gillan Disentangling land titles of three nations Sunol v. Hepburn – California, 1850 (1 Cal. 254); Pino v. Hatch – New Mexico, 1855 (1 N.M. 125); Gunn v. Bates – California, 1856 (6 Cal. 263)
“If [Mexican provincial authorities] had not the legal authority to grant the title and fee-simple in the public domain, we must concede to them as having had the power to regulate the possession and prescribe rules for the occupancy of the domain. The very necessity growing out of the condition of the inhabitants, their wants and welfare, presumes that power to have existed.” - Justice Kirby Benedict, in Pino
“It is very unusual now in cases of conquest for the conqueror to do more than to displace the sovereign, and assume dominion over the country. … The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relation to each other and their rights of prop remain undisturbed.” – Justice Perry Brocchus (dissenting), in Pino | Acequia flume, Rancho de las Golondrinas, New Mexico - courtesy Archinia and Wikimedia Commons
![]() Gold miners, El Dorado, California (ca. 1850) - courtesy Library of Congress “[A] universal sense of necessity and propriety [has] fixed … the rights of miners … who, by prior appropriation, have taken the waters from their natural beds, and by costly artificial works have conducted them for miles over mountains and ravines, to supply the necessities of gold diggers, and without which the most important interests of the mineral region would remain without development.” - Justice Solomon Heydenfeldt, in Irwin
John C. Fremont (1856) - courtesy Library of Congress Manuel Micheltorena (ca. 1850) - courtesy Wikimedia Commons “I cannot refrain from the opinion that in these cases [including the Fremont case] the Supreme Court … has entirely disregarded their previous decisions. It is, however, a matter of congratulation to myself to know tha this wholesale abandonment of principles … was not unanimous, and that one of the Judges of that Bench [Justice John Catron], better acquainted, probably, than any of his associates, with that class of cases … dissented from the opinions in the case of Fremont and for reasons substantially the same as those which influenced the decisions of this Court.” -Chief Justice Hugh Murray, in Gunn |
EMPIRE OF LAWS - The Legal History of the 50 American States > 7. SOUTHWEST LEGAL HISTORY > 7.1 Southwest Legal History: The Frontier Era (1820-1875) > 7.1.1. Southwest Legal History (1820-1875): The Civil Law Tradition > 7.1.2 Southwest Legal History (1820-1875): The Clash Between Common Law and Civil Law >