Appeal from the Fifth District.

Injunction to restrain defendants from entering within plaintiff’s enclosure and digging up and washing away fruit trees, etc., and for damages.

Plaintiffs, some eight years since, took up a tract of about two hundred and twelve acres of land under the Possessory Act of this State, enclosed it and planted it with fruit trees. The complaint avers, in substance, that plaintiffs and those under whom they claim now are and from the year 1852 have been the owners and in possession of a certain tract of land about two hundred and forty feet long by one hundred and sixty feet wide ; that in 1857 they planted on said tract one hundred and sixteen apple and peach trees of two years’ growth, which are now fruit-bearing trees; that plaintiffs took up, enclosed and hold said land under the Possessory Act of this State for agricultural purposes; that there is on the land a frame house, the residence of one of tho plaintiffs, fifteen ornamental trees and a large quantity of shrubbery, which are permanent and valuable improvements; that defendants on the twenty-first of December, 1860, and at other times entered upon said premises and dug a ditch thereon for mining purposes, thus washing away and destroying the trees, and that they threaten to continue so to do; that these acts if continued will cause irreparable injury, etc.; that defendants are insolvent; that plaintiffs have already sued defendants for similar trespasses and obtained judgment. Prayer for perpetual injunction, and for damages.

The answer denies insolvency, and then substantially sets up that plaintiffs bold as agriculturists only under the Possessory Act, and that defendants, being miners, have a right to enter for mining purposes -that they have paid the judgment against them for the value of trees heretofore destroyed, and have offered and are ready to pay the value of all trees destroyed, which they put at three dollars •per tree.

The case was tried before a jury. The evidence is not in the •record, but the agreed statement of facts is as follows, to wit :

Plaintiffs some eight years since took up a possessory claim under the laws of this State, containing two hundred and twelve acres on the mineral lands, fenced and enclosed the same for the purposes of a fruit orchard, and planted the same with fruit trees.

Defendants, being miners, about four years since took up a mining claim inside this enclosure, consisting of a piece of ground about two hundred feet long by one hundred and thirty feet wide, containing about one hundred and thirteen of these fruit trees, most of them bearing fruit, which was sold by plaintiffs. Defendants having destroyed some of these trees in their mining operations, plaintiffs began suit against them, obtained a temporary injunction, and subsequently a judgment for the sum of forty-two dollars, as the value of the trees destroyed. The Court refused to make the injunction perpetual. In pursuing their mining operations defendants again dug up and destroyed several other trees growing on the same piece of ground, having previously tendered to plaintiffs the value of the trees they were about to destroy, which tender plaintiffs declined to accept, and the money was deposited in Court. Plaintiffs again brought suit and obtained another temporary injunction. The verdict on trial was—“ We, the jury, award the plaintiffs forty-two dollars damages.” Judgment accordingly. Plaintiffs then moved the Court on the pleadings, the foregoing facts and judgment, to make the injunction perpetual against digging up the trees. Motion denied, and an order made refusing to continue the injunction. From which refusal and order plaintiffs appeal.