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judge may thereupon appoint a time and place for hearing such petition, and shall order notice thereof to be served on the adverse party, company or corporation, which notice shall be served at least three days before the day of hearing. At the time and place appointed, the court or judge shall proceed to hear the petition. Either party may read affidavits on the hearing in the same manner, and subject to the same rules, as on application to dissolve an injunction. If the court or judge be satisfied that the facts stated in the petition are true, an order shall be made for an inspection, examination or survey of the mine, lead, lode or mining claim in question, in such manner, at such time, and by such persons as are mentioned in the order. Such persons shall thereupon have free access to such mine, lead, lode or mining claim, for the purpose of such inspection, examination or survey, in conformity with the order of the court or judge, and any interference with such persons while acting under such order, shall be contempt of court and punished accordingly; provided, that only three witnesses beside the surveyor shall be admitted on the part of the petitioner, and the costs of the proceeding shall abide the result of the suit.1

1 Code, Col., p. 144.



$ 250. Pleadings in possessory action-Complaint. -SEC. 249. The plaintiff, in his complaint, shall set forth the nature and extent of his estate in the property or if such plaintiff claims the legal right to occupy and possess the premises under the local laws and rules of any mining district, or of the United States, the state of Colorado, or otherwise, the complaint shall contain a brief statement of such possessory claim, and whether the right claimed is by pre-emption or purchase,

or by right of actual prior possession on the public domain of the United States. * * * 1

1 Code Col., p. 97.

§ 251. The answer.-SEC. 250. The answer to a complaint filed under this chapter shall either specifically deny the material allegations of the complaint or may disclaim any interest in or possession of the property claimed, or any part thereof. The answer may also state, generally as in the complaint, the character of the estate in the premises, or any part thereof, which the defendant claims, or any right of possession or occupancy he claims.1 SEC. 258. If the defendant files or makes any other answer or defense than a disclaimer of title or right of possession, it shall not be necessary for the plaintiff to prove him in possession of the premises at the time of the commencement of the action, or at any other time.2

1 Code Col., p. 97.

2 Code Col., p. 100.

* * *

§ 252. No abatement of damages on account of improvements.-SEC. 254. And in case such premises recovered be a lode, vein, or mining claim, the defendant shall not be entitled to any offset for any timbering, cribbing, improvements, or developments made upon the same; neither shall the damages be abated or lessened by reason of such improvements or developments.1

1 Code Col., p. 99. By this section it is also provided that in actions for possession of real property the party against whom judgment is rendered may, by paying all costs, be entitled to a new trial.

§ 253. Injunctions.-SEC. 2. No writ of injunction shall issue out of the district court upon the order of either the county judge or county court, in case of the

absence of the district judge, which shall attempt


* *

to restrain the enjoyment or working of any mine or mining claim.1 Any writ of injunction issued against the working and mining of a lode or mining claim without notice to the opposite party shall be void.2 No motion to dissolve an injunction shall be heard in vacation when granted upon mining claims after answer filed, or when awarded after notice, as provided in Section 127.4

1 Session Laws 1879, p. 86.

2 Code Col., § 127, p. 47.

3 Ibid, p. 48.

4 Code Col., § 132, p. 50.

§ 254. Injunction for affirmative relief-Restitution.-SEC. 137. The said district court of the state, or any judge thereof, 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, or premises from which he or they may have been ousted by fraud, force or violence, or from which he or they are kept out of possession by threats, or by words, or actions, which have a natural tendency to excite fear or apprehension of danger, or whenever such possession was taken from 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; provided that no such writ shall issue except upon notice in writing to the adverse party, of at least five days, of the time and place of making such application, if made in vacation, and if made in term time, not before defendant

or defendants have been duly served with process, and required to appear and answer by virtue of such service. And if the defendant or defendants shall file an answer to the complaint upon which such application is founded, denying under oath the material averments in said complaint contained, the said court or judge thereof shall hear evidence in support of said complaint or answer, or may cause the said application to be referred to a referee, to take such proofs in support of said complaint and answer, and shall direct the said referee to report the proofs to the said court or judge within a reasonable time, allowing to the complainant and defendant a reasonable time in which to take proofs; and the time so allowed by said court or judge for the purpose of taking testimony shall be equally divided between said complainant and defendant; and it shall be the duty of the complainant or complainants to take his, her or their testimony first, and the defendant or defendants shall proceed to take his, her or their proof within the last half of said time so allowed, and the said court or judge shall adjourn the hearing of the said application until some day within a reasonable time after the time of taking and completing said proofs, and at such time, upon the hearing of said referee's report, shall grant or refuse said writ, as the pleadings and evidence in said cause or proceedings may warrant or require; and, provided further, that no such writ shall issue in favor of any person or persons, to restore to such person or persons, possession of any mining property, if the said person or persons shall have obtained or procured possession of said property by violence, or by fraud, or by taking possession of the same while the adverse party in possession was temporarily absent therefrom; and, provided further, that appeal as in other cases, shall be allowed from any final order or decree granting an injunction under the provisions of

this section; but such appeal shall not have the effect to suspend the operation of said writ, after an order or decree is made by the court or judge granting the same, nor to continue one in force after an order or decree is made dissolving any injunction pending the appeal. When application is made for such an injunction for affirmative relief, as contemplated in this section, the court or judge shall immediately, on the filing of the complaint, issue a temporary injunction, as provided for in Section 126 of this act.1

1 Code Col., p. 51; see ante, § 158, injunction.

$ 255. Notice essential to affirmative relief.-SEC. 138. No writ of injunction for affirmative relief, having the force and effect of a writ of restitution, shall be valid or have any force whatsoever, if issued without notice and without complying with the provisions and conditions of the preceding section.1

1 Code Col. p. 52.


Coal mines.1-Section one of the act requires the fencing of slack piles against loose cattle or horses. Section two requires the fencing or filling of abandoned coal pits or shafts, so as to furnish permanent protection to live stock. Section three declares a violation of either of the preceding sections to be a misdemeanor, punishable by a fine not less than twenty nor more than one hundred dollars, in addition to liability to the party injured.2

1 Chapter xiv.

2 Gen. Laws, p. 126.

§ 257. Commissioner of mines.-The act, by section two, fixes the term at four years, and authorizes the filling of temporary vacancies during the recess of the

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