Reaves v. Oliver
| Decision Date | 22 June 1895 |
| Citation | 41 P. 353,3 Okla. 62,1895 OK 17 |
| Parties | REAVES et al. v. OLIVER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Courts have the power to deal with possession of land prior to the issue of patent, and will protect the possessory rights of those entitled to the same under the laws relating to public lands.
2. Mandatory injunction is a proper remedy to protect the possession of one having a valid homestead entry on public land against persons who are trespassing on the land.
3. One who prosecutes a contest against a homestead entry for fraud under the act of May 14, 1880, and secures the cancellation of the entry, thereby acquires a preference right of entry for 30 days from notice of the cancellation of said entry and when he makes a homestead entry of the lands within that time his right relates back to the date of the initiation of his contest: and a settlement made upon the land, while his contest is pending, by another adverse claimant, gives such claimant no rights as a settler, and such homestead entryman may have him restrained from interfering with the occupancy and possession of said land.
4. The land officers, in allowing a homestead entry, are required to pass upon the qualifications of the entryman, and the courts will not inquire into or pass upon any question of fact properly belonging to the department, while such matters are pending before the land department.
5. Courts may inquire into the status of the claimants before the land department sufficiently to determine who has the better right to possession under the laws of the United States.
6. One contesting for a preference right has no right to the possession of the land pending the litigation as against the homestead entryman.
7. The granting of temporary injunctions pendente lite are largely in the discretion of the court, and appellate courts will not vacate such orders on appeal, unless there has been clear abuse of discretion, or the same is granted without authority.
Appeal from district court, Logan county; before Justice Frank Dale.
Action by James E. Oliver against Robert S. Reaves and others for injunction. From a judgment for plaintiff, defendants appeal. Affirmed.
J. A Baker and F. M. Elkins, for appellants.
Keaton & Cotteral, for appellee.
This is an appeal from an order of the district court of Logan county granting a temporary order of mandatory injunction. The defendant in error filed his petition in the district court in which it is alleged that on the 23d day of April, 1889 one Albert G. Jones made homestead entry No. 5, at the Guthrie land office, for the S.W. 1/4 section 5, township 16 N., range 2 W., and that, on the 1st day of August, 1889, the petitioner, Oliver, filed a contest in said office against the homestead entry of Jones, and applied to enter the land; that he alleged in his contest affidavit that Jones was not qualified to enter said land, by reason of having entered the Oklahoma country during the prohibited period prior to the opening of said lands to settlement; that other persons, to wit, Dennis Nagle, Temp Elliot, and Edward S. Quarles, also filed contests against said entry of Jones, and alleged prior settlement on the land; that a hearing was ordered and had as to all said parties, and such proceedings had that finally, on the 16th day of June, 1893, the assistant secretary of the interior dismissed the contests of Nagle. Elliot, and Quarles, held the entry of Jones for cancellation, and awarded the preference right of entry to the petitioner, Oliver; that afterwards a petition for review was overruled by the Honorable Hoke Smith, secretary of the interior, and all the papers returned to the commissioner of the general land office, with instructions to carry into effect the decision of that office; that on the 1st day of March, 1894, the homestead entry of Jones was canceled by the commissioner of the general land office, and on the 27th day of March, 1894, the petitioner, Oliver, was notified of said cancellation, and of his preference right to make homestead entry of said tract, awarded him under the provisions of the act of congress of May 14, 1880; that on the 29th day of March, 1894, Oliver filed his application to make homestead entry of said tract in the United States land office at Guthrie, and paid the fees therefor, but action on the same was at that time suspended for the reason that the office of register was vacant; that afterwards, on June 1, 1894, and as soon as said office of register was filled, his said application was allowed and homestead receivers' duplicate receipt No. 12,258, issued to him for said tract. The petitioner further alleges that he has been a bona fide resident and occupant of said land since June 1, 1894, and has a dwelling house thereon, and other valuable improvements; that pending his proceedings in the land office to secure his preference right of entry, the defendant Robert S. Reaves, with full knowledge of his rights and all the proceedings, moved upon the land in dispute, established his residence thereon, and was attempting to enter said land for a homestead; and also, to contest his preference right, that he had demanded of Reaves that he surrender possession and...
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