Burdge

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 principles. In Tartar v. Spring Creek Co., 5 Cal. R., we said: “ The current of decisions of this Court goes to establish that the policy of this State, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner.” That “ this policy has been extended equally to all pursuits, and no partiality for one over another, has been evinced, except in the single case where the right of the agriculturist is made to yield to that of the miner when gold is discovered in his land.”

In Fitzgerald v. Urton, 5 Cal. R., it is said: “…