1. Miners may enter for mining purposes upon agricultural lands in the possession of another. (Stoakes v. Barrett , 5 Cal. 36; McClintock v. Bryden, Id. 97; Burdge v. Underwood , 6 Cal. 45; Martin & Davis v. Browner et al. , 11 Id. 12; Clarke v. Duval , 15 Id. 85; Smith v. Doe, Id. 100; Slade v. Sullivan , 17 Id. 102.)
2. If appellants took up the lands eight years since, as is admitted, for agricultural purposes, the respondents had a right to mine thereon so long as they were used only for grazing and ordinary agricultural purposes; so they had a right, while the lands were thus held for agricultural purposes, to go on them and locate a mining claim of the ordinary size to be worked as the season and supply of water would allow. And if, as we maintain, the claim was located before the trees were planted, the respondents acquired a vested right, and they could not be deprived of thatright by the appellants planting trees on their claim.
Again: appellants own the trees and ought not to be deprived of them without some strong reason for it. So the respondents own the mining claim and have a right to dig the gold out of it, if it can be done without unreasonable damage to others. Suppose the trees to be of but little value, and the gold of great value, would it not be more reasonable to allow the respondents to dig their gold and pay for the trees, than to protect trees and lose the gold entirely; the soil does not belong to the owner of the trees, but to the Government. It is simply a question who shall use the Government soil for making a profit out of it. It was a proper subject for the discretion of the Court below, having all the facts before it, to determine whether it would grant a perpetual injunction, or suffer the respondents to mine the ground by paying for the trees destroyed. That Court has exercised that discretion, and this Court ought not to interfere. (Slade v. Sullivan, supra .)
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. and Baldwin, J. concurring.
OPINION
COPE, Judge
There is no doubt that the plaintiffs are entitled to the equitable relief prayed for. The verdict is conclusive of the rights of the parties, and the only remedy from which the plaintiffs can derive adequate relief is by injunction. They are threatened with injuries which must, if committed, result in the destruction of their property, and it is the duty of the Courts in such cases to interpose and prevent the perpetration of the injurious acts. We can hardly conceive of a more appropriate case than the present for the administration of this species of justice; the mischief against which the plaintiffs seek protection is irreparable in its nature, and destructive of interests for which no equivalent can be returned. The fact that the defendants are willing to pay for the property is immaterial, for there are no means of determining whether the value of the property in money would compensate the plaintiffs for its destruction. It may possess a value to them which no other person would place upon it; and there is neither justice nor equity in refusing to protect them in the enjoyment of it, merely because they may possibly recover what others may deem an equivalent in money. The nature of the property, which consists of fruit trees, ornamental shrubbery, etc., gives them a peculiar claim to this protection.
The order appealed from is reversed, and the cause remanded for a judgment in accordance with this opinion.