Barnes v. Newton

• Decision Date: 12 February 1897
• Citation: 48 P. 190,5 Okla. 428,1897 OK 2
• Parties: JOSEPH C. BARNES v. HENRY A. NEWTON.
• Court: Oklahoma Supreme Court

1897 OK 2

48 P. 190

5 Okla. 428

JOSEPH C. BARNES v. HENRY A. NEWTON.

Supreme Court of Oklahoma

Decided: February 12, 1897

Error from the District Court of Oklahoma County.

This is a suit for an injunction brought by a successful land contestant in the district court of Oklahoma county, to restrain his adversary from a further trespass upon or interference with him in the use and occupation of the tract of land in dispute between the parties. The opinion states the facts.

Syllabus

¶0 INJUNCTION. Where two parties are contesting before the United States land department for a tract of government land, and the final decision is had in favor of one of such parties, the successful party may institute an action in the district court for an injunction to have his adversary enjoined from further interfering with his possession of the premises, and in such cause the court may properly award an injunction which prevents the unsuccessful party in the contest proceedings from further occupancy of the disputed premises.

Amos Green & Son, for plaintiff in error.

J. H. Everest, for defendant in error.

DALE, C. J.:

¶1 Henry A. Newton commenced an action on May 3, 1894, in the district court of Oklahoma county against Joseph C. Barnes, asking that a restraining order issue to prevent Barnes from breaking sod or trespassing upon any portion of the southeast quarter of section 2, in township 13 north, range 4 west, land situated in Oklahoma county. The record before us does not disclose whether or not any action was taken upon the application for a restraining order. However, on November 9, 1894, an amended petition was filed, and on such amended petition the cause was prosecuted. The pleadings in the case and the judgment of the court before whom the cause was tried are all we have presented in the record, and from these it appears that the tract of land above described was, shortly after April 22, 1889, filed upon as a homestead by one Morris; that Newton, on July 26, 1889, filed a contest against the entry of Morris, and that such contest was based upon the ground of the disqualification to enter land upon the part of Morris; that Barnes claimed to have made settlement upon the land July 5, 1889, and in August, of the same year also filed a contest against the entry of Morris, the grounds for such contest being in effect the same as those in the contest of Newton; and on August 30, 1889, Barnes purchased the relinquishment of Morris, paying therefor $ 100. On January 4, 1890, Newton filed a supplementary contest against the entry of Morris, the relinquishment of Morris not having been presented at the land office by Barnes. While the contests of Newton and Barnes were so pending, Barnes, on April 15, 1890, presented at the land office the relinquishment of Morris, and was permitted to file a homestead entry for the tract, subject to the rights of Newton, the prior contestant. After Barnes' entry went of record, Newton, instituted proceedings against such entry, claiming that he was entitled to a preference right of entry as against Barnes by reason of having had the prior contest. This hearing resulted favorably to Newton, and on April 6, 1894, the cause reached a final determination; the entry of Barnes was canceled and Newton permitted to homestead the land.

¶2 Both Newton and Barnes have resided for a number of years on the land claimed by both parties. The petition for injunction alleges, among other things, insolvency an the part of Barnes, and an attempted breaking of sod in that part of the land used by Newton as hay and pasture land, and which, if permitted, would work irreparable injury to Newton.

¶3 The answer of the defendant below is very lengthy, and after setting forth the various dates of his settlement, contest, filing, etc., and his qualifications to enter the land, alleges, in substance, his purchase of the relinquishment of Morris, payment therefor, and that the relinquishment was not the result of the contest upon the part of Newton; that his homestead entry was never legally canceled; that the commissioner of the general land office, under a mistake and misapprehension, both of law and facts, and without any valid evidence and upon false evidence upon the part of Newton, canceled his entry. That the decision of the commissioner was contrary to the rules of the land department, and that the secretary of the interior was misled and deceived and never clearly comprehended the law of the facts on which his decision was based, and for such reasons their action was void; that at the time he, Barnes, purchased the relinquishment of Morris, he had no knowledge of any pending contest by Newton, and that no proof was offered by Newton establishing the disqualification of Morris. That no preference right to enter the land was secured to Newton by reason of his being the first con- testant, because Morris, at the time of his relinquishment, had no knowledge of such contest. Many other matters are alleged in the answer, which are unnecessary to notice, as in the absence of the record showing the proceeding had upon the trial, they cannot be considered.

¶4 The case appears to have been tried before a referee, and evidence taken and a judgment rendered upon the report, but as none of the proceedings before the referee are brought into the record, the sole question before us to be considered is whether or not the judgment is sustained by the pleadings. A copy of the judgment is before us, and from an investigation thereof it appears that an injunction was granted which in effect prohibited Barnes from further interference with Newton's possession in the land, except that Barnes was permitted, at any time within sixty days, to remove any improvements he might have upon the land.

¶5 Injunction has been applied in cases similar in character to that under consideration by the supreme court of this territory. (Reaves v. Oliver, 3 Okla. 62, 41 P. 353; Woodruff v. Wallace, 3 Okla. 355, 41 P. 357). And it has also been held that where two persons were each contesting for a right to a tract of land covered by a homestead entry, the courts had jurisdiction of the subject matter of possession, and after ascertaining the right of possession, to enforce the same by injunction. (Sproat v. Durland, 2 Okla. 24, 35 P. 682; Jackson v. Jackson, 17 Ore. 110, 19 P. 847; Lee v. Watson, [Mont.], 38 P. 1077; Wood v. Murray, 85 Iowa 505, 52 N.W. 356).

¶6 It is claimed, however, upon the part of appellant, that in the case we are now passing upon a different question is presented; that under the answer the appellant is the equitable owner of the land, and that the court below should have so found and refused the order of injunction. This contention is not tenable. The question of title is a matter to be determined by the tribunal created by congress for the purpose of trying such question. (Marquez v. Frisbie, 101 U.S. 473, 25 L. Ed. 800; Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Shepley v. Cowan, 91 U.S. 330, 23 L. Ed. 424).

¶7 That the courts will not interfere with the actions of the land department until after the title has passed from the government is equally well settled by the cases last cited. Under the decisions referred to the only extent to which a court may go is to determine the question of possession. This is clearly authorized and has for its support abundance of authority besides the decisions of the supreme court of this territory. (Marquez v. Frisbie; Jackson v. Jackson; Wood v. Murry; Lee v. Watson, supra).

¶8 But it is insisted that plaintiff below had an adequate remedy at law for the relief sought, and that injunction will not therefore lie in this case. Whether or not the law affords an adequate remedy is a question which must always depend upon the particular facts presented in each case. Counsel for appellant fails to point out the legal remedy under the laws of this territory which will afford a speedy relief. It has been decided that ejectment will not lie. (Couch v. Adams, 1 Okla. 17, 26 P. 1009, and cases therein cited). The action of forcible entry and detainer might lie, but by delays and appeals a party in possession of a homestead could keep his adversary out of the possession of the land for years, while the law of congress relating to homesteads contemplates an exclusive and immediate possession. And if forcible entry and detainer were depended upon, a party whose cause has been fully determined in a competent tribunal would be left to harass and annoy the person who has, after years of litigation, been awarded the exclusive right to the occupancy of the land. Why should the courts hesitate in granting the relief by injunction? The legal status of the parties has been determined, and the contestant who remains upon the land after his rights have been finally and adversely passed upon, is there without color of right and as a mere naked trespasser This remedy, by injunction, to dispossess after the courts have settled the title, is well established in England. (High on Inj. § 360 and note; 2nd Story's Eq. § 959). The tribunal created by congress to award title to the land taken under the homestead law is the law tribunal for the purpose of determining all questions concerning such title, and in so far as its jurisdiction obtains is comparable to the district courts of this territory in like manner as are the courts of those states where they still have courts of law and chancery as a separate and distinct jurisdiction. The courts of this territory are the courts of chancery to which litigants for public lands may come for relief after they have established their title in the tribunals of the law. If the law tribunal had jurisdiction over the sub- ject matter of possession, as well as of title, would they not as a part of their judgment give a writ of possession? Not having that jurisdiction, and the courts of the territory possessing it, what objection can be reasonably urged against granting...