Barnes v. Newton
| Decision Date | 12 February 1897 |
| Citation | 48 P. 190,5 Okla. 428,1897 OK 2 |
| Parties | BARNES v. NEWTON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
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. McAtee, J., dissenting.
For dissenting opinion see 49 P. 1074.
Appeal from district court, Oklahoma county; before Justice Henry W Scott.
Action by Henry A. Newton against Joseph C. Barnes. Judgment for plaintiff, and defendant appeals. Affirmed.
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.
Amos Green & Son, for plaintiff in error.
J. H Everest, for defendant in error.
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 said or trespassing upon any portion of the S.E. 1/4 of section 2, in township 13 N., range 4 W., 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 filed 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. 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 on 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, it permitted, would work irreparable injury to Newton. 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, alleged, 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 officer, 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 the no preference right to enter the land was secured to Newton by reason of his being the first contestant, 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, and they cannot be considered. 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 60 days to remove any improvements he might have upon the land.
Injunction has been applied in cases similar in character to that under consideration by the supreme court of this territory. Reaves v. Oliver, 3 Okl. 62, 41 P. 353; Woodruff v. Wallace, 3 Okl. 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 the of possession, and, for after ascertaining the right of possession, to enforce the same by injunction. Sproat v. Durland, 2 Okl. 24, 35 P. 682, 886; Jackson v. Jackson, 17 Or. 110, 19 P. 847; Lee v. Watson (Mont.) 38 P. 1077; Wood v. Murray, 85 Iowa, 505, 52 N.W. 356. It is claimed, however, upon the part of appeallant, 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. Marqueze v. Frisbie, 101 U.S. 473; Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U.S. 330. 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 decision 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. Marqueze v. Frisbie, Jackson v. Jackson, Wood v. Murray, and Lee v. Watson, supra.
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...
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