Davis v. Byrd

SEPARATE CONCURRING OPINION. I do not think that injunction would lie in this case, because plaintiff has an adequate remedy at law. He can either partition the property or maintain an action for his share of the ores taken from said lots.

The petition, set out in the main opinion, alleges that only one of the owners of said lots is a non-resident of Missouri, and does not allege that the other owner is either a non-resident or insolvent.

Also, if the owner of a one-half interest in mining land can prevent the owners of the other half, or their assigns or lessees, from mining thereon, the owner of a thousandth interest can do likewise; the position of plaintiff is thus capable of reduction to absurdity.

I concur in the result reached in the able opinion of Judge FULBRIGHT, and think that the demurrer to the petition was properly sustained.