I concur in the foregoing opinion by Mr. Justice Moody, and in the judgment of dismissal of the appeal.
Barnes, J.This is an appeal from an order of the District Court of Lawrence county, restraining the defendants from interfering with certain mining property therein described-, said order having the force and effect of a writ of restitution. The complaint alleges that immediately prior to the bringing of this .suit, the plaintiffs were in the quiet and peaceable possession of, and were entitled to, the possession of a mining claim known as the “ Old Brigg ” mine, lode, lead, ledge, deposit or vein of gold-bearing ore or quartz rock.
The complaint also alleges that while so in the peaceable and quiet possession of said described premises, and entitled thereto, the said defendants, on the twenty-seventh day of March, 1878, by fraud, and during the temporary absence of said plaintiffs, entered upon and into a certain tunnel situated upon said mining property, said tunnel as well as mining property being in the rightful possession of the plaintiffs; that on the twenty-eighth day of • March, 1878, said plaintiffs demanded that said defendants surrender to said plaintiffs the possession of said mining property, which said defendants refused, and still refuse to do. The plaintiffs therefore pray that an injunction may issue herein, having the force and effect of a writ of restitution of the above described premises, and for such other relief as by law and right they may be entitled to. The complaint is verified.
*37The defendants take issue upon the allegations of the complaint. By their answer the defendants raise the further question as to the power of the District Court or Judge, in a summary manner, to determine the question of the right of possession of the premises in controversy. They also claim that the statute conferring this power upon the District Court or Judge is unconstitutional, and of no force or effect.
Issue being thus joined, on the third day of April the presiding Judge of the First District granted an order, on the application of the plaintiffs, requiring defendants to show cause before him, at chambers, on the ninth" day of April following, why an injunction having the force and effect of a writ of restitution should not issue.
On the ninth day of April, 1878, by consent of parties, the hearing was postponed to the eighteenth day of said month. The respective parties were then heard, and an order granted restoring the plaintiffs to the immediate possessioxr of the mining property, and prohibiting and enjoining the defendants from further interference therewith.
The appellants seem to have regarded this order of restitution as disposing of all the questions raise'd by the pleadings, and as a final judgment in the action. In this I think they are in error.
It is an undeniable fact, of which courts may properly take notice, that in mining districts and localities there is a strong tendency toward the disregard of law and order — fraudulently and stealthily to seize upon the possessions of others, and by force and intimidation to deprive the rightful occupant of his property or possession. Hence the wisdom, and I think necessity, of the law under consideration.
Section 20, p. 162, c. 31, Rev. St., provides that in six enumerated cases a party may be restored to the possession of premises by order of the District Court or Judge thereof, if the property be mining property: First, when ousted by force and violence; second, by fraud; thvrd, when kept out of possession by threats; fourth, when the party entered on Sunday; fifth, a legal holiday; sixth, when the party w'as temporarily absent from his premises.
Fairly construed, it may be stated thus: When the party has been deprived of mining property, of which he was in possession, *38by unlawful, fraudulent or criminal means, the District Court or District Judge may, by order, restore the party to his possession and protect him in the occupancy thereof, pending the determination of other questions involved.
The last paragraph of section 20 removes all doubt upon this question, if doubt could otherwise exist. I give the language: “ The granting of such writ to extend only to the right of possession under the facts of the case, in respect to the manner in which the possession was obtained, leaving the parties to their legal rights on all other questions as though no such writ had issued.”
There is no doubt in this respect the Legislature has conferred upon District Courts and District Judges unusual power. It is well to observe, however, that this power can only be exercised where, by means criminal, unlawful and fraudulent, calculated to incite a breach of the peace, the offending party or parties, by their disregard of law, have made it necessary to exercise unusual powers to compel them to obey the law and respect the rights of others.
In determining this question I have not overlooked the inquiry as to whether the order or judgment under review is so far final that an appeal can be taken to this court, nor do I purpose to pass upon that question in determining this case.
The apparent necessity for prompt judicial construction of'the statute under consideration has led me to disregard, so far as practicable, the consideration of other questions arising in this case. I have remarked that the defendants have taken issue upon the allegations of the complaint. In so holding I do not overrule or modify the decision of this,court as to the insufficiency of the answer in the case of Dole v. Burleigh, but I do hold that the party interposing an insufficient pleading shall not be permitted in this court to urge the insufficiency of his own pleading.
The judgment or order appealed from in this case should be affirmed, except so far that upon the final determination of the action in the District Court the order should be modified or set aside in accordance with the judgment or decree finally entered in the District Court.