Conger

Mr. Justice Terry concurred. Mr. Chief Justice Murray dissented.

It is admitted in the argument, on both sides, that the rights claimed by both parties are in and to the public lands, neither of them having title, except what arises from possession, or the claim of it.

In the decisions we have heretofore made upon the subject of private rights to the public domain, we have applied simply the rules of the common law. We have found that its principles have abundantly sufficed for the determination of all disputes which have come before us; and we claim that we have neither modified its rules, nor have we attempted to legislate upon any pretended ground of their insufficiency.

That new conditions and new facts may produce the novel application *556 of a rule which has not been before applied, in like manner, does not make it any less the common law; for the latter is a system of grand principles, founded upon the mature and perfected reason of centuries. It would have but little claim to the admiration to which it is entitled, if it failed to adapt itself to any condition, however new, which may arise; and it would be singularly lame if it is impotent to determine the right of any…

I dissent.