Forman v. Healey
| Decision Date | 22 January 1903 |
| Docket Number | 6731 |
| Court | North Dakota Supreme Court |
Appeal from district court, Richland county; W. S. Lauder, J.
Action by Frank N. Forman against Simon P. Healey and another. Plaintiff secured a temporary injunction to prevent threatened waste. Defendants subsequently, pendente lite secured an order setting aside the injunctional order of plaintiff, directing the vacation of the disputed tract by plaintiff, and enjoining plaintiff from interfering with or obstructing defendants' use and occupation of the land. From this order the plaintiff appealed. Reversed.
The parties to this controversy are severally located upon a quarter section of government land in Richland county, N.D each claiming residence and right to perfect title under the homestead laws of the United States. The plaintiff, in his complaint, avers that he established residence upon the land and received from the United States land officers a certificate of homestead entry, on the 27th day of April 1899, and that at the time of the commencement of his action he occupied the land, with his family, as a homestead; that the defendant, in July, 1899, entered upon the premises, and cut and was about to remove therefrom the crop of grass and hay, against the will and without the consent of plaintiff, to plaintiff's damage $ 50; that the defendant was insolvent, and that he would enter upon the land and commit waste unless restrained. Plaintiff demanded judgment for $ 100 damages, and for an injunction perpetually restraining the defendant from entering on the premises for the purpose of committing waste, or cutting or carrying away the grass and hay growing thereon. The defendant Healey's answer to the complaint consisted of denials, and by way of counterclaim he averred his actual possession of the land in dispute for the purpose of settlement and residence under the homestead laws; that his possession had been continuous for three years prior to said time; that 10 acres of the land were broken and cropped by him to grain and garden vegetables, and that for three years prior to the commencement of the action he had cut and removed the hay therefrom; that he was an applicant for a homestead filing upon said land, and that his right to make such filing was in contest before the Interior Department of the United States; that said contest was pending and undisposed of; that because of a restraining order issued in the action, preventing his occupying a portion of said land, and cutting the hay, grain, and vegetables thereon, he was damaged in the sum of $ 300, wherefore he demanded judgment for $ 300 and costs. The averments of the defendant's counterclaim are denied by reply on the part of the plaintiff. No facts are alleged in the counterclaim of defendant entitling him to equitable relief; nor is there any prayer for equitable relief, by way of injunction, or otherwise, in his answer. An order to show cause, supported by affidavits on the part of the plaintiff, and opposed by affidavits on the part of the defendant, was brought on for hearing before the judge of the district court on the 13th day of July, 1899, and resulted in the issuance and service upon the defendant of an injunctional order enjoining and restraining defendant from entering upon the east half of the quarter section of land in dispute for the purpose of committing waste, cutting and removing grass thereon, or in any way interfering with the plaintiff's use and occupation thereof. But defendant Healey was allowed the use and occupation of 10 square acres of said land, whereon his house was situated, pending the determination of a hearing before the United States land office at Fargo. The 10 acres are described in the order. This injunctional order was continued until the month of April, 1901, when the defendant Healey, upon affidavit, secured the issuance and service of an order to show cause why the same should not be vacated and set aside, and the plaintiff, in turn, restrained from sowing the land to crops for the crop season of 1901. The plaintiff appeared and opposed said order by affidavit, and after hearing, and on the 21st day of May, 1901, the court issued an injunctional order vacating the injunctional order of July 13, 1899, and restraining the plaintiff, his agents and servants, from interfering with the use and occupation by the defendant Healey of the land in dispute, excepting a strip upon which plaintiff's dwelling house is situated, and which was described by metes and bounds in said order. No appeal was taken from this order, and the same was continued until the 24th day of April, 1902, when, upon an order to show cause obtained in said action by the defendant upon affidavit, the injunctional order from which this appeal is taken was made, entered, and served upon the plaintiff, Forman, wherein it is recited that: The issues in said action have never been brought on for trial or tried. The affidavits upon which the order appealed from was obtained disclose that while the Secretary of the Interior had decided adversely to the rights of the plaintiff, Forman, in the contest before the land department, an application for rehearing in his behalf was pending and undisposed of.
Order reversed in part, affirmed in part. Appellant recovered costs.
Ink & Wallace and Purcell & Bradley, for appellant.
Charles E. Wolfe and E. A. Munger, for respondent.
COCHRANE, J. (after stating the facts).
The appeal in this case is from an interlocutory order in no way affecting its merits upon the issue joined, which has not yet been tried. Plaintiff, in his complaint, bases his cause of action upon his right to possession of the land in question. The injunctional order was procured on showing by affidavit in the action, and, as a provisional remedy only, contains language against plaintiff seldom, if ever, used, except in writs of ejectment, and after full hearing upon the merits where the right of cross-examination has been secured. Without passing upon the right of plaintiff to the injunctional order granted him in the first instance, it may be noted that there is an averment in the complaint of threatened waste, and of the insolvency of the defendant, from which the inference is deducible that the remedy at law would not, in the event of recovery, fully protect plaintiff's rights, and in the prayer for relief an injunction is expressly asked for. It will also be noted that the answer and counterclaim of defendant contain no averments whatever which, if proven, could, under any rule so far declared by the courts, entitle defen...
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