Stoakes

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.,…