Baldwin, J. concurring.

This is an action to restrain the defendants from mining upon a small tract of land, containing about two acres, in the possession of the plaintiff. The land is inclosed, and employed in the cultivation of fruit trees and garden vegetables. It is situated in the mines, and the defendants threaten to enter upon it for mining purposes, having given bond in conformity with the provisions of the Act of April 25th, 1855, for the protection of growing crops and improvements in the mining districts of this State. The validity of this act is the only question presented by the pleadings. In the passage of the act, the Legislature seems to have proceeded upon the idea that the right of a miner to enter upon the possessions of another, for mining purposes, was absolute and unconditional, and the intention clearly was to limit the exercise of this supposed right, and not to give a right of entry in cases where no such right previously existed. It is clear that, in this respect, the Legislatme acted under a misapprehension of the law upon the subject. We have repeatedly held that, as a general rule, the public mineral lands of this State were open to the possession and occupancy of every person desiring, in good faith, to enter upon the same for mining purposes. But we have also held that there were exceptions to this rule, and the case at bar seems to be included in these exceptions. The correct doctrine upon this subject was laid down in the case of Smith v. Doe, decided at the January term. “ It must not be understood,” said the Court, “that within the limits of the mines all possessory rights and all rights of property not founded upon a valid legal title, are held at the mercy and *156 discretion of tlie miner. Upon this subject it is impossible to lay down any general rule, but every case must be determined upon its own particular facts. Valuable and permanent improvements, such as houses, orchards, vineyards, etc., should undoubtedly be protected, as also growing crops of every description, for these are as useful and necessary as the gold produced by the working of the mines. Improvements of this character, aud such products of the soil as are the fruits of toil and labor, must be regarded as private property, and, upon every principle of legal justice, are entitled to the protection of the Courts. But in all cases, it must be borne in mind that, as a general rule, the public mineral lands of the State are open to the occupancy of every person who, in good faith, chooses to enter upon them for the purpose of mining; and the examples we have given may serve in some measure to indicate the proper modifications of this rule, and the restrictions necessary to be placed upon the exercise of this right. It is the duty of the Courts to protect private rights of property, but it is no less their duty to secure, as far as possible, the entire freedom of the mines, and to carry out and enforce the obvious policy of the Government in this respect.”

The act in question, so far as it purports to give a right of entry upon the mineral lands of this State, in cases where no such right existed anterior to its passage, is clearly invalid. The Legislature has no power to take the property of one person and give it to another; nor can private property be taken even for public use, unless compensation be made to the owner, and the authorities all agree that the compensation must precede or accompany the taking.

The Court did not err in refusing to allow the defendants to amend their answer. The defense upon which they relied was invalid, and we do not see how the result could have been changed by the desired amendment. Besides, the allowance of the amendment was a matter of discretion, the abuse of which could alone justify our interference.

Judgment affirmed.