Moody, J.
This was an action brought by the respondents (plaintiffs below) in the District Court of Lawrence county, against the appellants, (defendants below,) to recover the possession of a certain tunnel situated in a mining claim in such county, the claim being called and known as the “ Old Brigg ” mine.
The plaintiffs'allege prior actual occupancy and continued right of possession; that defendants, by fraud, and during the temporary absence therefrom of said plaintiffs, entered upon and into said tunnel; still retain the possession thereof; a refusal to surrender upon demand; and pray for an injunction having the force and effect of a writ of restitution, and for such other and further relief as by law and right they may be entitled to, and for costs.
The defendants answer, by what may be properly characterized as a combined answer and demurrer, as follows:
“ And now come the defendants, and for answer to the complaint of plaintiffs in the above entitled cause deny each and every material allegation contained therein; and for a further answer to the complaint of plaintiffs, defendants allege the fact to bé, the facts stated in said complaint do not constitute a cause of action; that the same is not within the jurisdiction of said court; that the statute upon which said action is based is unconstitutional; that it is’not within the jurisdiction of the court to issue a writ of restitution prior to the rendition of a judgment; that the same must be based upon a judgment, and a judgment cannot be rendered against defendants without the interposition of a trial by jury.”
The complaint, verified, together with some affidavits not appearing in the transcript, were presented to the then Judge of the First Judicial District, who thereupon made the following order to show cause:
[33]*33“ On reading the within complaint and affidavits introduced on behalf of plaintiffs, ordered that said defendants (naming them.) show cause before me at chambers, in Deadwood, Dakota, on the ninth day of April, A. D. 1878, at the hour of 10 o’clock A. M., why an injunction having the force and effect of a writ of restitution should not issue as prayed in said complaint,
‘•Done at chambers, Deadwood, D. T., this third day of April, A. D 1878.
.“GRANVILLE G. BENNETT, Judge."
The bill of exceptions recites that upon the return of the order to show cause at an adjourned day the cause came on for hearing before the Judge upon the complaint, order to show cause, affidavits of plaintiffs, and answer and affidavits of defendants, although no affidavits, or papers, or proofs upon which the hearing was had., or the order hereafter mentioned was granted, appear in the transcript, save such verified complaint and verified answer; nor does the certificate of the clerk, or the bill of exceptions, show that these were all the papers or proofs upon which the order was granted. Upon such hearing the Judge made the following order :
“ On return of the order to show cause made by me, * * (and after hearing counsel for both parties,) it is ordered that said plaintiffs * * * be restored to the possession of the tunnel on ‘ Old Brigg ’ mine, occupied by said plaintiffs at the time they complained of having been ousted by the said defendants, * * * to-wit: on the twenty-seventh day of March, A. D. 1878; and I hereby order that the said defendants, and their agents and servants, be and they are hereby enjoined and restrained from interfering in the possession and development of the mining ground of said ‘ Old Brigg’ mine through said tunnel.
“Given under my hand and seal at Deadwood, (with date.)
“GRANVILLE G. BENNETT,
“ Judge First Judicial District Court"
From this order, and the preliminary determination of the Judge that the act of the Legislature upon which the order was based was valid, and that he had jurisdiction, the defendants appeal to this court.
The first question which is presented for consideration is: What is the nature of the order appealed from ? Is it a final order, a final judgment — in other words, a final decision, within the meaning of the statute of the United States — from which this court derives its appellate powers ? • If it is, then we must needs determine at this time whether error has been committed in the granting of such order, and this would necessarily • involve the determination of the question of the validity or invalidity of the act of the Legis[34]*34lature under which this power has been exercised. If it is not a final order, but only, in effect, a preliminary or temporary injunction, pending the litigation in the main action, and auxiliary merely to the main action; then, under the decision of this court at this term, in the case of the Harris Manufacturing Company v. Walsh, this appeal is premature and must be dismissed, as beyond the power of this court at this time to consider and determine. The provisions of the statute, under which this order evidently was granted, are contained in section 20, c. 31, of the Political Code, and are as follows:
“.The District Courts, or any Judge thereof, sitting in chancery, shall have, in addition to the power already possessed, power to issue writs of injunction for affirmative relief, having the force and effect of a writ of restitution, restoring any person or persons to the possession of any mining property from which he or they may have been ousted by force and violence, or by fraud, or from which they are kept out of possession by threats, or whenever such possession was taken fronj him or them by entry of the adverse party on Sunday or a legal holiday, or while the party in possession was temporarily absent therefrom; 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.”
The most favorable view which can be taken of this statute is, that it was intended by the Legislature to be a recognition of the well known powers of a court of equity, by its final decree, in a proper case, to direct the issuing of an injunction of a mandatory or restorative character, and also as an enlargement of the powers of the court, or a Judge thereof, to the extent that injunctions in this peculiar class of cases to operate temporarily, but possessing the force and effect for the time being, of mandatory or restorative injunctions, ¿light be granted. It was passed at the same session of the Legislature as the Code of Civil Procedure, and by express enactment, for the purpose of construction, is to be held and deemed to have been passed on the same day and as part of the same statute, (section 16, p. 940, Revised Codes;) and I think should be read as though it was incorporated into añd made a patt of [35]*35Article 3, c. 11, of such. Code of Civil Procedure, Title “ Injunctions and thus all the safeguards there provided, and with the opportunity to the person against whom the order is granted to be heard concerning it, will attach to and form a part of it.
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Moody, J.
This was an action brought by the respondents (plaintiffs below) in the District Court of Lawrence county, against the appellants, (defendants below,) to recover the possession of a certain tunnel situated in a mining claim in such county, the claim being called and known as the “ Old Brigg ” mine.
The plaintiffs'allege prior actual occupancy and continued right of possession; that defendants, by fraud, and during the temporary absence therefrom of said plaintiffs, entered upon and into said tunnel; still retain the possession thereof; a refusal to surrender upon demand; and pray for an injunction having the force and effect of a writ of restitution, and for such other and further relief as by law and right they may be entitled to, and for costs.
The defendants answer, by what may be properly characterized as a combined answer and demurrer, as follows:
“ And now come the defendants, and for answer to the complaint of plaintiffs in the above entitled cause deny each and every material allegation contained therein; and for a further answer to the complaint of plaintiffs, defendants allege the fact to bé, the facts stated in said complaint do not constitute a cause of action; that the same is not within the jurisdiction of said court; that the statute upon which said action is based is unconstitutional; that it is’not within the jurisdiction of the court to issue a writ of restitution prior to the rendition of a judgment; that the same must be based upon a judgment, and a judgment cannot be rendered against defendants without the interposition of a trial by jury.”
The complaint, verified, together with some affidavits not appearing in the transcript, were presented to the then Judge of the First Judicial District, who thereupon made the following order to show cause:
[33]*33“ On reading the within complaint and affidavits introduced on behalf of plaintiffs, ordered that said defendants (naming them.) show cause before me at chambers, in Deadwood, Dakota, on the ninth day of April, A. D. 1878, at the hour of 10 o’clock A. M., why an injunction having the force and effect of a writ of restitution should not issue as prayed in said complaint,
‘•Done at chambers, Deadwood, D. T., this third day of April, A. D 1878.
.“GRANVILLE G. BENNETT, Judge."
The bill of exceptions recites that upon the return of the order to show cause at an adjourned day the cause came on for hearing before the Judge upon the complaint, order to show cause, affidavits of plaintiffs, and answer and affidavits of defendants, although no affidavits, or papers, or proofs upon which the hearing was had., or the order hereafter mentioned was granted, appear in the transcript, save such verified complaint and verified answer; nor does the certificate of the clerk, or the bill of exceptions, show that these were all the papers or proofs upon which the order was granted. Upon such hearing the Judge made the following order :
“ On return of the order to show cause made by me, * * (and after hearing counsel for both parties,) it is ordered that said plaintiffs * * * be restored to the possession of the tunnel on ‘ Old Brigg ’ mine, occupied by said plaintiffs at the time they complained of having been ousted by the said defendants, * * * to-wit: on the twenty-seventh day of March, A. D. 1878; and I hereby order that the said defendants, and their agents and servants, be and they are hereby enjoined and restrained from interfering in the possession and development of the mining ground of said ‘ Old Brigg’ mine through said tunnel.
“Given under my hand and seal at Deadwood, (with date.)
“GRANVILLE G. BENNETT,
“ Judge First Judicial District Court"
From this order, and the preliminary determination of the Judge that the act of the Legislature upon which the order was based was valid, and that he had jurisdiction, the defendants appeal to this court.
The first question which is presented for consideration is: What is the nature of the order appealed from ? Is it a final order, a final judgment — in other words, a final decision, within the meaning of the statute of the United States — from which this court derives its appellate powers ? • If it is, then we must needs determine at this time whether error has been committed in the granting of such order, and this would necessarily • involve the determination of the question of the validity or invalidity of the act of the Legis[34]*34lature under which this power has been exercised. If it is not a final order, but only, in effect, a preliminary or temporary injunction, pending the litigation in the main action, and auxiliary merely to the main action; then, under the decision of this court at this term, in the case of the Harris Manufacturing Company v. Walsh, this appeal is premature and must be dismissed, as beyond the power of this court at this time to consider and determine. The provisions of the statute, under which this order evidently was granted, are contained in section 20, c. 31, of the Political Code, and are as follows:
“.The District Courts, or any Judge thereof, sitting in chancery, shall have, in addition to the power already possessed, power to issue writs of injunction for affirmative relief, having the force and effect of a writ of restitution, restoring any person or persons to the possession of any mining property from which he or they may have been ousted by force and violence, or by fraud, or from which they are kept out of possession by threats, or whenever such possession was taken fronj him or them by entry of the adverse party on Sunday or a legal holiday, or while the party in possession was temporarily absent therefrom; 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.”
The most favorable view which can be taken of this statute is, that it was intended by the Legislature to be a recognition of the well known powers of a court of equity, by its final decree, in a proper case, to direct the issuing of an injunction of a mandatory or restorative character, and also as an enlargement of the powers of the court, or a Judge thereof, to the extent that injunctions in this peculiar class of cases to operate temporarily, but possessing the force and effect for the time being, of mandatory or restorative injunctions, ¿light be granted. It was passed at the same session of the Legislature as the Code of Civil Procedure, and by express enactment, for the purpose of construction, is to be held and deemed to have been passed on the same day and as part of the same statute, (section 16, p. 940, Revised Codes;) and I think should be read as though it was incorporated into añd made a patt of [35]*35Article 3, c. 11, of such. Code of Civil Procedure, Title “ Injunctions and thus all the safeguards there provided, and with the opportunity to the person against whom the order is granted to be heard concerning it, will attach to and form a part of it.
When thus construed, as in effect a part of the Code of Civil Procedure relating to preliminary injunctions, it will at once be observed that this order in question is, and can be but a temporary restraining order — a preliminary injunction pending the litigation in the main action, and determining nothing as to the ultimate rights of the parties — and an appeal from it at this time will not lie to this court. I recognize the ordinary rules of chancery which preclude a chancellor from granting a temporary or preliminary injunction to operate as mandatory or restorative, and that in the absence of an express enactment to that effect a Judge would not undertake the exercise of such extraordinary powers. But, without passing in advance upon the question of the validity of the statute as it now is, as not properly before us in the view I take of the temporary character of this order appealed from, I know of no rule of law, constitutional or otherwise, which will prevent the Legislature, in its wisdom, from conferring that power, with the proper safeguard and protection of the defendant’s rights, and by requiring the requisite security, and in regard to a proper subject. It may be considered as analagous to the process for the immediate delivery of personal chattels, pending the litigation relating to -the right of possession of such chattels, giving to the party lately in possession of this species of property, of which he has been thus unlawfully dispossessed, the right to invoke the equity powers of the court- by summary process to put the parties in statu quo, pending the litigation over the right of possession ; and we must presume the wisdom, and policy, and necessity of such an enactment, relating to the peculiar species of property to which it applies, was apparent to the Legislature that enacted it.
Thus regarding, as I do, this order as merely temporary or preliminary, (although, in the zeal of the plaintiffs counsel to procure the order, not aptly worded by him,) and that the main action is not determined, but is still in progress, it follows, from the decision of this court I have quoted, that the appeal must be dismissed, [36]*36but without prejudice to the defendant’s bringing another appeal, if they'shall be so advised, in conjunction with their appeal from the final judgment, if judgment shall be against them.
This court would be precluded from hearing this appeal at this time upon another ground apparent upon the record. The transcript does not purport to contain all 'tlie papers upon which the order was granted, and the statute relating to the sending .up of transcripts in appeals of this kind seems to have been wholly disregarded.
The appeal is dismissed at appellant’s costs, without prejudice.