Stoakes v. Barrett & Co.

Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J, concurred.

This is an appeal from an order granting an injunction in aid of an action of trespass. The declaration upon which the injunction was granted sets out in effect, that the lands are public lands, and that the [39]plaintiff claims his right of possession under the Act of April, 1852» “ prescribing the mode of maintaining and defending possessory actions on public lands in this State.” The first section of this Act gives the right of action to any one settled upon public lauds for the purpose of cultivating or grazing; but it provides, “ that if the lands so occupied and possessed contain miues of any of the precious metals, the possession or claim of the person or persons occupying the same for the purposes aforesaid, shall not preclude the working of snch mines by any person or persons desiring so to do, as fully and unreservedly as they might or could do had no possession or claim been made for grazing or agricultural purposes.”

The declaration further shows, that the defendants invaded the close of the plaintiff for the purpose of mining, and that rich mineral deposils had been recently discovered on the premises.

We held, in the case of Hicks, et al., v. Bell, et al., that the mines of gold and silver in this State Avere the property of the State, and that the policy of her legislation permitted all persons to Avork for these metals. We did not, in that case, intend to go further than to decide the right of all citizens to dig for gold upon the public lands; for although the State is the owner of the gold and silver found in the lands of private individuals as well as the public lands, yet to authorize an invasion of private property, in order to enjoy a public franchise, would require more specific legislation than any yet resorted to.

But where the question is confined to the public lands, there is no necessity to resort to any construction to determine the right which the law confers. The Act I have above cited is plain, positive, and specific in its terms; and it gives the permission to all persons to work the mines upon public lands, notAvithstanding that they may be in the possession and enjoyment of another for agricultural purposes. Nothing can be plainer than the intent of this Act, and nothing more specific than the right which it gives.

The complaint, therefore, in this case, shows no cause of action, and no injunction should have been granted.