Davidson v. Dallas. opinion become a portion of the judgment. The opinion in this case remands the case for further proceedings, and those proceedings are to be in pursuance of the principles of the opinion. This is, in effect, if not directly, a mandate to the Court below to follow the directions of the opinion of this Court, on new trial; to administer the law as laid down in the opinion. The very matter here, then, in this case, in 8 Cal., was the validity of the third assignment of errors; and this question was expressly decided in favor of the then appellants, the present respondents. That judgment is, therefore, conclusive. We could not review it on motion for rehearing. It stands as the judgment of the highest Court of record of the State; and it is not in our power now to retry it on appeal, for, as Mr. Justice Baldwin says, we have no appellate power over our own judgment. The case of Stearns v. Aguirre (7 Cal. 443) is not opposed to this view. That case only considered the effect of a general order of reversal in a common law case. It was held that this did not preclude another trial; but it was not held that that trial was to be unaffected by the opinion of this Court. The general words used by Murray, C. J., that the parties had the same rights after the reversal as before, did not mean more than this: that they had the same right to try the case-not the right to try it in disregard of the opinion of the Appellate Court. This view of the case is conclusive of this appeal. The same facts are brought before the Court now as when the case was heard and decided here. The agreement was before the Court between Dallas and Gilsen, and the effect of it was passed upon. The mere fact that the boat was sold under the process of Gilsen, and the amount credited on his judgment, and the proceeds of a subsequent sale of it divided, in proportion to their claims, between Gilsen and Dallas, can make no difference in the principle of liability. According to the opinion, Gilsen might subject the property to sale to the extent of his claim, and, if it sold for no more, Dallas was not responsible; for it was Gilsen's right so to subject it, and the corresponding liability for all damages resulting from the exercise of this right, devolved upon him. What he did with the proceeds—whether he kept them, or divided them with Dallas, can make no difference, so far as regards this action, on the bond of Dallas, who only bound himself to indemnify Gorham for damages beyond those incurred after the satisfaction of Gilsen's prior claim-if the principles heretofore declared be the standard. There is no proof that the sureties of Dallas assented Clark v. Duval. to this arrangement, whatever it was, with Gilsen; and their liability must be determined by their contract, and cannot be effected by subsequent matters of arrangement between the principal obligors in these bonds, with which they had no concern. We must give effect to the leading principle of the former opinion, which was, that Gilsen had a right to subject this vessel to sale, for the payment of his debt in priority to the claim of Dallas; and that the responsibility of the bond of Gilsen was co-extensive with this right; and the liability of Dallas only accrued after the exercise of this right on the part of Gilsen, and attached only from the fact that there was some interest in the boat left after the sale under Gilsen's attachment, and which interest was subjected to or affected by Dallas' proceeding. And it seems to follow that Dallas and his sureties cannot be held on their bond for the damages sought to be recovered in this action, although, by agreement between Dallas and Gilsen, the proceeds of this vessel, which was sold under Gilsen's clairn, were divided between them. Judgment affirmed. CLARK v. DUVAL et als. MINERS have a right to enter upon public mineral land, in the occupancy of others for agricultural purposes, and to use the land and water for the extrac tion of gold — the use being reasonable, necessary to the business of mining, and with just regard to the rights of the agriculturist. And this, whether the land is inclosed, or taken up under the Possessory Act. The right so to enter and mine, carries with it the right to whatever is indispensable for the exercise of this mining privilege as the use of the land, and such elements of the freehold or inheritance as water. APPEAL from the Fourteenth District. Suit for damages for entering upon plaintiff's land, and constructing reservoirs and flumes, digging ditches, and diverting water. Plaintiff was in the actual possession, by inclosure, of three hundred and twenty acres of public mineral land, which he had originally taken up under the Possessory Act of 1852. The land, or a portion of it, was fit for agricultural purposes, and was used by plaintiff for raising grain and vegetables. Plaintiff lived on the land with his Clark v. Duval. family, and had valuable improvements. He had, also, cut a ditch from the hill-side to various portions of the land for irrigation. Defendants entered upon a portion of the land as miners; dug ditches, constructed a reservoir and flume for use in working the mines on said land; they, also, cut plaintiff's ditch, and diverted the water. The acts of defendants were necessary for their mining purposes. The jury found a special verdict, assessing damages for cutting plaintiff's ditch, and diverting water, at two hundred and two dollars, and the same sum for constructing a reservoir and digging ditches on the land. The Court gave plaintiff judgment for the former damages, and granted an injunction, restraining defendants from diverting the water, by tapping plaintiff's ditch, but denied damages and injunction for digging ditches and constructing reservoirs. From this latter part of the judgment, plaintiff appeals. McConnell & Garber, for Appellant. I. The plaintiff claims by actual possession, and not under the Act of April 20th, 1852, "Prescribing the mode of maintaining and defending possessory actions, etc." True, he originally located under that act, but the title thereby acquired has been superseded by the higher and better one of actual possession. He, therefore, holds his land now, freed from the reservation in favor of miners, imposed by that act. (Wood's Digest, 526.) Upon this same principle, had he purchased the land from the Government, or located it under a school land warrant, he would cease to be subject to the reservation, notwithstanding his original location was made in pursuance of the act. II. The act itself must be construed strictly. All laws in derogation of the rights of private property must be strictly construed. (Urton v. Fitzgerald, 5 Cal. 308; Burge v. Underwood, 6 Id. 45; Weimer v. Lowery, 11 Id. 104; Tartar v. Spring Creek Co., 5 Id. 395.) Upon this principle, nothing is reserved or excepted to the miner, except the mere right to mine upon the land, together with the privilege of ingress and egress, and that of digging in the soil to find the gold. There is a distinction between those privileges which are absolutely necessary and essential to the enjoyment of the thing granted, and those which are merely useful and convenient. It is true, that at this day water and water-ditches are deemed necessary to miners; or more properly speaking, they are so very con Clark v. Duval. venient to mining, as now carried on, that it will not pay to work ground without them. An appurtenance may not be absolutely necessary to the enjoyment of the principal thing, and when not essential to the use of the thing granted, it will not pass by mere force of the words granting the principal, but must be especially mentioned. In the present case, the law makes no mention of the right to dig ditches and construct reservoirs; and hence, if such right exist at all, it must be as an essential incident to the right to mine. Formerly, ditches and reservoirs were not used at all by miners, and even now, in many cases, they are not deemed of essential importance. How then can a right pass, as a necessary incident under this general statute, when in a vast number of cases it is not considered necessary? III. The language of the act should be construed in the same manner as a contract containing the same words of reservation or condition. (Collier on Mines, p. 58 et seq.; Darcy v. Askwith, Hobert's R. 234; Cardigan v. Armitage, 2 Barn & Cress. 197; Broadbent v. Wilkes, Willes, 360.) IV. The object of the. statute was, to vest in the miner a mere easement, and neither a property or possession in the soil. It was never contemplated that they shall have the right to do acts which would amount to an eviction of the party in possession, for grazing or agricultural purposes; this is the rule in England, where all mining is carried on upon private lands. One man may own the soil, while another owns a mine as a corporeal hereditament, together with an easement in the soil itself. (Collier on Mines, pp. 1-82.) Constructing ditches and reservoirs, does amount to an eviction. ex dem. Waun v. Horn, 3 Mees. & W. 338; S. C. 5 Id. 564.) Henry Meredith, for Respondents. (Doe 1. The right of persons to enter upon public mineral land for mining purposes, although the land has been previously taken up for agricultural purposes, has been decided by this Court. (Stoakes v. Barrett, 5 Cal. 39; McClintock v. Bryden, Id. 101-2; Burge v. Smith, 14 Cal. Wood's Dig. 527, art. 2750.) 2. This right carries with it all incidents necessary to the full enjoyment of the right to take the gold. (Hodgson v. Field, 7 East. 613; Sheppard's Touchstone, 89; Dand v. Kingscote, 6 Mees. & W. 174; Eldridge v. Wright. Broom's Legal Max. 362–365, 369.) What is a necessary incident, is a question of fact for the jury; and in this case they found the acts of defendants to be necessary to the full working of the mines. BALDWIN, J. delivered the opinion of the Court - COPE, J. and FIELD, C. J. concurring. The only question in this case, is as to the right of miners to go upon public lands in the occupancy of others for agricultural purposes, and use the land and water for the extraction of gold, such use being a reasonable use and necessary to the business of mining. We think that the fact that the land was inclosed by the plaintiff, and not taken up in pursuance of the Possessory Act, unimportant. It is conceded that it was public mineral land; and the act making such land subordinate, when taken up for agricultural purposes, to the rights of miners, would fail of its purpose, if the process of inclosure defeated the rights of the miner. In giving effect to the policy of the Legislature, we must hold that the miner is not confined to a mere right of entry and egress, and a right to dig the soil for gold. Whatever is indispensable to the exercise of the privilege must be allowed him; else it would be a barren right, subserving no useful end. But the substantial thing is a right to use the land, upon which he goes, not merely to dig, but to mineand so to use the land and such elements of the freehold or inheritance, of which water is one, as to secure the benefits which were designed. This use must be reasonable, and with just respect to the rights of the agriculturist; but no question of limitation, upon the general principle giving this right of use to the miner, arises in this case. Judgment affirmed. PLAINTIFFS ELDRIDGE et al. v. WRIGHT et als. obtained a preliminary injunction restraining defendants from obstructing a road leading to plaintiffs' mine. Upon the answer being filed, the injunction was dissolved. Plaintiffs being about to appeal from the order dissolving the injunction, the Judge below thereupon made an order that, upon such appeal being perfected by filing a bond, etc., as required by him, the order granting the injunction should be revived and continue in force. Plaint |