Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] 15 Cal. 101 at 106.
Original Opinion of January 1860, Reported at: 15 Cal. 101.
Rehearing denied.
JUDGES: On petition for rehearing, Cope, J., delivered the opinion of the Court. Field, C. J. and Baldwin, J., concurring.
OPINION
COPE, Judge
On petition for rehearing, Cope, J., delivered the opinion of the Court--Field, C. J. and Baldwin, J., concurring.
The tone of the petition in this case, though disrespect is disclaimed, is scarcely decorous. We merely allude to this circumstance that we may have no occasion to notice any deviation from strict professional propriety, in this respect, in future.
We still adhere to our former view of the case. The only question is, whether the mere possession of a large tract of mineral land is sufficient to support ejectment, as against a person entering upon and occupying the land for mining purposes. We held that it was not, and we see no reason for changing that opinion. The counsel for the plaintiffs seem to forget that the case was decided upon the pleadings alone. They say, " Surely, no one can suppose that where a plaintiff's case was made out, the mere allegation of affirmative matter by a defendant would be sufficient to defeat it." Surely, no one can suppose that a plaintiff is entitled to recover upon the pleadings, when the answer contains affirmative matter which, if true, constitutes a valid defence to the action. The injunction must follow the determination of the legal rights of the parties; but the Court is vested with ample power to preserve the property pending the litigation.
Rehearing denied.