Titcomb v. Kirk

By the Court: Appellant urges that he should have had judgment, in accordance with the prayer of his complaint, under an act of Congress entitled “An Act granting the right of way to ditch and canal owners,” approved July 26, 1866, and an act amendatory thereof, approved July 9, 1870. The provisions of the statutes referred to and of the “Act to promote the development of the mineral resources of the United States,” approved May 10, 1872, should be considered and construed together ; and it is apparent that it was the purpose of the legislation, taken as a whole, to recognize in, and confirm to, the respective classes of licensees therein mentioned the same rights which were accorded to them by the State courts prior to the passage of the acts of Congress. There is nothing in the ninth section of the act of 1866 which requires of us to hold that the defendant’s right to possess and enjoy his mining claim must be subordinated to the right of plaintiff to construct his ditch. The clause in the ninth section, “ and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed,” cannot be construed to enlarge the grant to ditch owners, so as to include a right not “recognized and acknowledged by the local customs, laws and the decisions of the courts.” Nor does the proviso [295] authorize the construction of a ditch or canal across the mining claim of another, whatever may be its effect in respect to “settlers” on agricultural lands of the United States. Judgment and order affirmed. Mr. Justice Rhodes expressed no opinion.