Sproat v. Durland

• Decision Date: 02 February 1894
• Citation: 35 P. 682,2 Okla. 24,1894 OK 5
• Parties: SPROAT v. DURLAND. [1]
• Court: Oklahoma Supreme Court

35 P. 682

2 Okla. 24, 1894 OK 5

SPROAT v. DURLAND. ^[1]

Supreme Court of Oklahoma

February 2, 1894

Bierer J., dissenting.

Appeal from district court, Oklahoma county; John G. Clark, Judge.

Proceedings by Samuel Sproat to enjoin Otto C. Durland from interfering with his possession of certain land claimed by plaintiff as a homestead. Defendant filed an answer and cross complaint claiming the land as his homestead, and asked that plaintiff be enjoined from interfering with his possession. From a decree for defendant, plaintiff appeals. Affirmed.

A purchase of the improvements of a settler on public lands confers no settlement right on the purchaser, as such right is not transferrable.

Amos Green & Son, Harry St. John, and J. L. Brown, for appellant.

Everest & Sanford and W. S. Field, for appellee.

DALE C.J.

May 1 1893, appellant, Samuel Sproat, applied for and obtained from the district judge of Oklahoma county, sitting at chambers, a temporary restraining order against the appellee, Otto C Durland, which order restrained said Durland, and all persons acting under him, from in any manner trespassing upon the N.E. 1/4 of section 34, township 12 N., of range 3 W., or turning any cattle therein, or building any fence thereon, or in any wise interfering with the possession of Sproat in and to said land, except 20 acres, therefore occupied by one Kate A. Woodruff, until the further order of the court; and that defendant be notified to appear before the court on May 3, 1893, at noon, or so soon thereafter as the court could hear the matter; and in said order also required Sproat to give bond in the sum of $200 to the defendant in said proceeding. The above order was issued upon the ex parte showing by affidavit of Sproat, which affidavit is as follows:

"Comes now the plaintiff, and for cause of action against the defendant states: (1) That upon the 21st day of April, 1893, the N.E. quarter of sec. 34, tp. 12 N., R. 3 W., was held by homestead entry thereon by one Kate A. Woodruff, and at that time the defendant, Otto C. Durland, had a contest pending in the United States land department against the said homestead entry of Kate A. Woodruff, upon the ground that Kate A. Woodruff was not qualified to make homestead entry of said land by reason of the fact that she had entered upon the same after March 2, 1889, and before noon of April 22, 1889. (2) That one Martin C. Lawrence had a contest pending against said homestead entry, upon the ground that he, Lawrence, was a settler at the time and before Kate A. Woodruff made homestead entry thereon. (3) That Kate A. Woodruff had a fence on the north side of said land, and owned one-half of the fence on the east side of said land; the other half of the fence on the east line being owned by one Clay Peters. Kate A. Woodruff owned the fence on the south line of said land, and the one on the west side thereof was built by the public for the purpose of obtaining a highway, which fences completely inclosed said quarter section of land. (4) That Kate A. Woodruff had inclosed and in cultivation, on the south side of said land, about twenty acres, separate from the other parts of said land, upon which she had a small dwelling house and well. (5) Said Lawrence had inclosed on the west side of said land about four or five acres, upon which he had a dwelling house, and within which inclosure he had a garden and well. (6) That upon the 24th day of April, 1893, the plaintiff purchased the improvements of said Lawrence, and peaceably entered into possession of the same, and Lawrence removed from said land. On the same day plaintiff entered on said land as a settler thereon, under the homestead laws of the United States, for the purpose of making the same his home, and claiming it under the laws of the United States as a homestead. (7) Upon the 28th day of April, 1893, this plaintiff peaceably and quietly entered into the possession of the said tract of land, except the twenty acres cultivated by Kate A. Woodruff, and upon which she had located her dwelling house; and such entry was made without objection or protest on the part of said Kate A. Woodruff; and that ever since said date this plaintiff has held possession of all of this tract of land, except the part so cultivated by Kate A. Woodruff. (8) On April 21, 1893, this plaintiff filed in the United States land office at Oklahoma City an affidavit of contest, duly corroborated, charging that said Kate A. Woodruff and Otto C. Durland had entered within the Oklahoma lands after the 2d day of March, and before noon of April 22, 1889, in violation of law, and were therefore not qualified to make homestead entry within the Oklahoma lands. (9) On the 29th day of April, 1893, Kate A. Woodruff filed in the United States land office at Oklahoma City a relinquishment of her homestead entry on said land, and at the same time Otto C. Durland made homestead entry on said land, and at that instant of time this plaintiff was a settler on said land under the homestead laws of the United States, and was claiming the same as his homestead, and had valuable improvements on said land, consisting of a dwelling house, fences, and improvements of the value of $150 or more, and was in possession of all of said land, and holding the same peaceably and quietly, except the twenty acres occupied by Kate A. Woodruff, and was claiming the whole of said land as his homestead. That the plaintiff was at that time qualified in all respects to take public lands under the homestead laws of the United States. (10) Upon the 1st of May, 1893, this plaintiff filed in the United States land office at Oklahoma City an affidavit of contest against the said homestead entry of Otto C. Durland, duly corroborated, charging that the said Otto C. Durland did, after March 2, and before noon of April 22, 1889, enter upon and occupy portions of the land described in and declared open to settlement by the president's proclamation of March 23, 1889, opening said lands to settlement; and further charging that said Otto C. Durland was within said lands before and up to the hour of twelve o'clock noon of April 22, 1889, in violation of law; and further charging that the plaintiff was a homestead settler on the said land at and before the time that defendant made homestead entry thereon; and that such contest is now pending in the United States land office at Oklahoma City. Said settlement was made and said contest filed by this plaintiff in good faith, and for the purpose of acquiring title to said land. (11) Upon the 29th day of April, 1893, the defendant, Otto C. Durland, went into possession of the twenty acres of land inclosed, cultivated, and occupied by Kate A. Woodruff until that time. On April 29th she surrendered to said Durland the possession of that part of the said land. (12) On the same day the defendant commenced invading the possession of this plaintiff, and drove his cattle onto that part of the claim held by the plaintiff, which cattle were by the plaintiff driven from said land, when defendant again, on Sunday, April 30, 1893, turned his cattle upon the possession of plaintiff, who again drove them out. Defendant again drove them upon the possession of the plaintiff, and is continuing to keep said cattle there. That defendant is now sharpening fence posts and getting wire upon that part of said claim formerly occupied by Kate A. Woodruff, and, as this plaintiff verily believes, and up on such belief alleges, is preparing to fence this plaintiff out of the possession of some part or all of the land so held by him on said quarter section, and, if not restrained, will continue to force his cattle upon the possession of plaintiff, and fence said land away from this plaintiff, and deprive him of the benefits thereof, and wrongfully appropriate such possession and benefits to the use of the defendant. (13) That plaintiff has no adequate remedy at law; that, if the defendant be not at once restrained, he will continue the repetition of his said wrongful acts, and deprive this plaintiff of the use and benefit of his possession; and there is an emergency for the immediate issuing of a temporary restraining order, or plaintiff believes said defendant will attempt at night to erect a fence on plaintiff's possession, thereby excluding him from all use of said land. Wherefore plaintiff prays that an immediate restraining order at once issue, restraining the defendant from in any manner interfering with or invading the possession of said plaintiff in and to all parts of said land, except the twenty acres, formerly occupied by Kate A. Woodruff, until such time as a hearing can be had thereon, and that at such hearing said restraining order be continued, and, on the final hearing thereof, that such restraining order be made a perpetual injunction, and that this plaintiff recover his costs."

The affidavit was duly verified, and the restraining order heretofore mentioned issued thereon. At the time fixed for the further hearing, Durland answered to the complaint, as follows: "First. That he denies that upon the 24th day of April, 1893, or at any other time, the plaintiff settled upon the land in dispute in said action, or entered upon the said land as a settler under the homestead laws of the United States; and he denies that on the 28th day of April, 1893 said plaintiff peaceably and quietly entered into the possession of the whole of said tract of land, except the twenty acres cultivated by Kate A. Woodruff. Second. That defendant denies that the said plaintiff, upon the 24th day of April, 1893, or at any other time, purchased the improvements of Martin C. Lawrence upon the land in dispute, and peaceably entered into the possession of the same. Third. The defendant denies that on the 29th day...