
    SAMUEL SMITH et al., Appellants, v. J. M. RICHARDSON et al., Respondents.
    
    (See same case, 'ante.)
    Defendant Entitled to Injunction, When. — Under our system of Practice a Defendant, upon a proper showing by answer, is entitled to affirmative relief by way of injunction.
    Appeal from the Third District Court.
    The facts are stated in the opinion.
    
      Marshall & Royle, and Roshorough & Merritt, for Appellants.
    
      Bennett & Whitney, for Respondents.
   Emerson, J.,

delivered the-.opinion of the Court.

The Appellants filed their complaint in the Court below, claiming title to certain mining property, and alleging that Respondents were committing waste thereon, by extracting ores therefrom. ' The. complaint states the pending of another suit in the Court below between the Appellants as Plaintiffs, and the Respondents as Defendants, to determine the title to the property in dispute.

This action was commenced to obtain an injunction against the Defendants to prevent- them from further committing waste.

The Respondents answered the complaint, denying the title of the Appellants; also denying that any waste had been committed.

In addition to this defense, they alleged trespasses by the Appellants upon their, the Respondents, mining claim, alleging that both claims are on the same lode, and are identical, and prayed for and obtained, as affirmative relief, an injunction against the Appellants.

The appeal is taken from this order, and the error specified and relied upon is the granting of such an order on the answer. This is, therefore, the only point in the case.

The case made by the Respondents in their answer, beyond the denial of that made by the Appellants in their complaint, arises out of and is connected with the subject matter, concerning which the Appellants sought the action of the Court.

The provisions of §147 and §199 of the Practice Act, seem to us to leave no room^foi' doubt, but that the Respondents had a right to ask; for affirmative relief of this nature in their answer, arid jf these allegations were supported by proper and sufficient proof, it was the duty of the Court to grant it.

No question is made as to the sufficiency of the proof, and as the Court had an undoubted right to grant affirmative relief of this nature upon a case made by an answer, the judgment of the Court below must be affirmed.

Lowe, C. J., and Boremah, J., concurring.  