On Motion for Rehearing
PER CURIAM.The judgment on the petition prevents defendant from erecting any fences or girders on the right of way. These were the acts plaintiff had complained of. This was all defendant had done or threatened to do. If there was an implied threat of other interference with plaintiff’s lawful possession, then that portion of the judgment restraining the defendant from making any use which interferes with plaintiff’s use for a right of way was sufficient to meet that threat.
As to the judgment on the counterclaim, we agree that defendant had not made any bona fide attempt to exercise his mining rights, build trams, ponds, et cetera. But defendant does have that right, and the maintenance of large piles of sand and crushed stone do constitute some threat against the exercise or assignment of that right. In any event, the judgment restrained the plaintiff only from doing that which it had no right to do and, if error, was harmless.
If the parties desire further delineation of their rights, they should seek such in an appropriate action.
The appellant’s motion for rehearing or to transfer the cause to the Supreme Court is overruled.