Kirtley v. Dykes
| Decision Date | 08 February 1900 |
| Citation | 1900 OK 29,62 P. 808,10 Okla. 16 |
| Parties | BENJAMIN L. KIRTLEY v. MAY DYKES. |
| Court | Oklahoma Supreme Court |
Error from the District Court of Noble County; before Bayard T. Hainer, District Judge.
¶0 1. EJECTMENT--Judgment. A notice of the final decision of the land office is not an absolutely necessary condition precedent to the bringing of an action by the successful party to recover the possession of real estate.
2. GROWING CROPS--Belong to Whom. Where there has been a recovery of the possession of lands held adversely the successful plaintiff is entitled to the growing crops, as against the evicted defendant who planted them, on a final decision of ouster, unless such growing crops have matured and been separated from the realty.
Dale & Bierer for plaintiff in error.
S. H. Harris for defendant in error.
STATEMENT OF THE CASE.
This is an action in injunction begun by May Dykes, plaintiff, against Benjamin L. Kirtley, defendant, in the district court of Noble county, for the purpose of obtaining possession of a part of a homestead. It appears from the record that prior to the time of beginning of the action the parties had been contesting for the tract of land; that a decision had been rendered in the land department adversely to defendant, Kirtley, and that plaintiff filed her petition for the purpose of dispossessing Kirtley from the land; that the contest between the parties was originally for prior settlement, and that pending the determination of such contest, Kirtley filed an additional contest on the ground of abandonment. At the hearing for the temporary injunction, the judge of the district court on the 6th day of July, 1898, made an order dividing possession of the tract of land equally between the parties to the action; that the possession of the land remained in that condition until the final hearing of the case, which took place on the 12th day of December, 1898, at which last named date the court made an order, which, in substance, gave to Dykes the possession of all the quarter section of land in dispute, giving to the defendant, Kirtley, thirty days to take his movable improvements from the land, and further ordered that whereas, said Benjamin L. Kirtley has forty-five acres of wheat planted and growing upon said land, that the plaintiff shall pay to said defendant $ 2.50 per acre for the said wheat within thirty days, or if she does not do so, then the defendant, Kirtley, shall have the right of possession of said forty-five acres of land, which is so planted and growing in wheat, until after harvest in the season of 1899, and that the said Benjamin L. Kirtley shall deliver in the half bushel on said land, one-third of said wheat to the plaintiff, May Dykes, from which judgment, the defendant, Kirtley, appeals and brings this case here for review.
¶1 A reversal is urged upon two propositions, namely: first, that the injunction suit was prematurely brought for the reason that Kirtley, the defendant, never received from the land department any notice of the fact that his motion for review had been finally disposed of; second, that the court had no jurisdiction in this character of a case to determine the usable value of the forty-five acres which Kirtley had planted to wheat, neither had the court any jurisdiction to require Kirtley, in case Dykes failed to pay $ 2.50 per acre for the wheat land, to deliver to her one-third of the wheat in the half bushel.
¶2 We think the first contention is untenable, for the reason that a notice of the final decision of the land department as to the disposition of defendant Kirtley's motion for review was not a necessary condition precedent to plaintiff bringing this suit, when the matter was, as a matter of fact, finally decided by the land department, and a judgment rendered in favor of the plaintiff. Her right to the possession of the premises in question was completed, and her action to recover possession thereof should not be delayed to wait the service of notice on the defendant by the department, she having no control over the action of the department in giving or refusing to give notice of such determination of plaintiff's motion for review. Her right to the possession of the property in question depended entirely upon the decision of the land department, and not upon notice of said decision to the defendant.
¶3 As to the defendant's right to notice of a decision of his case by the land department, it is a question between the defendant and the land department, and one which in our judgment in no way affects the right of the plaintiff to possession of the land in controversy, and plaintiff could not legally be kept out of possession simply because the land department had neglected or failed to give notice to the defendant.
¶4 The main fact to be considered is: Has the question in controversy between the parties to this suit, as to the title and right of possession to the land in question, been legally and fully determined by the proper tribunal? If so, and the decision is in favor of the plaintiff, then she is entitled to take such legal proceedings as are necessary to recover possession of the premises in question, independent of the fact whether notice has or has not been given by the land department to the defendant in this action.
¶5 As to the second assignment of error, to-wit: that the judgment of the trial court was wrong as to the orders made in regard to the crops growing upon the premises in controversy, we think this proposition has been settled by this court in the case of Phillips v. Keysaw et al., reported in 7 Okla. 674, where the court say:
"Where there has been a recovery of the possession of the land held adversely, the successful plaintiff is entitled to the growing crops, as against the evicted defendant, who planted them; but until such possession has been terminated by ouster, the party so adversely holding is the owner, and entitled to the crops produced by his annual labor and cultivation, which were harvested before such ouster."
¶6 This was a case brought by plaintiff against defendant for a mandatory injunction for possession of land and a prohibitory injunction, restraining the...
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... ... So, likewise, is the case of Phillips v. Keysaw, supra, and Kirtley v. Dykes, 10 Okla. 16, 62 P. 808. The general rule of the common law that a tenant has no right to a crop growing on the land at the time his tenancy ... ...
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