Fitzgerald

Heydenfeldt, J., concurred.

This was an action in the Court below to restrain the defendants from the commission of a nuisance by reason of digging a ditch and mining in the plaintiff’s inclosure.

The facts are substantially—that the plaintiff was in possession of a small town lot in the town of Bidwell, on which he had erected a house used as a hotel—that the lot was inclosed by a substantial fence, and used as a poultry and wood yard, and for other purposes necessary to carry on the business of hotel keeping—that the plaintiff had for a long time been in the quiet use and possession of said premises, and that the defendants claiming a right as miners, entered upon the lot, and by digging and sluicing, had greatly damaged the plaintiff and inconvenienced him in his business, and threatened, if not restrained, to entirely ruin his possession.

Several grounds of error are assigned by the appellants, none of which are well taken.

First, it is supposed by the appellants, that the allegation of possession and title in the plaintiff was insufficient to enable him to maintain the action, and that he ought to have shown, that his possession was consistent with the statute of this…