Opinion
Filed February 7, 1900.
PUBLIC LAND — Homestead — Adverse Claimants — Injunction. Where adverse claimants are residing upon a tract of land, and each claiming the same as a homestead by virtue of priority of settlement, and the land department makes a final award thereof, the losing party cannot properly claim the right to continue his residence upon the land for the purpose of bringing a suit in equity to declare a trust against his successful adversary, when he has already resided upon the land a sufficient length of time, under the law, to enable him to make final proof for the land.
(Syllabus by the Court.)
Error from the District Court of Noble County; before Bayard T. Hainer, District Judge.
S. H. Harris, for plaintiff in error.
A. R. Museller and Henry Rucker, for defendant in error.
STATEMENT OF THE CASE.
This is an action commenced by the defendant in error, plaintiff in the court below, Byron E. Cable, against W. J. Mendenhall, defendant in the court below, and plaintiff in error here. Said action was by petition, asking for a mandatory injunction; on the filing of which petition a temporary injunction was granted by the court. Summons was issued and served on the defendant. To which petition defendant demurred, which demurrer was overruled, to which defendant excepted. Defendant then filed his answer to said petition. Defendant afterwards, by leave of court, filed his amended and supplemental answer to said petition. Afterwards, on the 7th day of November, 1898, the court grants an order and judgment enjoining and restraining the plaintiff from committing waste upon the premises in said petition described. To which amended and supplemental answer plaintiff demurs. Afterwards, on the 30th day of November, 1898, the demurrer to said amended and supplemental answer was sustained, to which the defendant excepts. And afterwards the plaintiff moves the court to dissolve and vacate the order of injunction made on the amended and supplemental answer, which motion is by the court sustained, to which the defendant excepts. Defendant refuses to plead further. The court renders judgment in favor of the plaintiff. Which order sustaining plaintiff's demurrer to the amended and supplemental answer of defendant, and the order of the court sustaining the motion of the plaintiff to dissolve the temporary injunction granted on said amended and supplemental answer of defendant, and the decision of the court in favor of the plaintiff, is assigned as error, and the cause is brought here for review.
Opinion of the court by
The facts in this case contained, and the principles of law herein involved, being practically the same as those involved in the case of E. F. Black v. Walter P. Jackson, decided in this court, February 12, 1898, and reported in volume 6, page 751, Oklahoma Reports, and the views therein expressed, and the law therein laid down, meeting with our approval, the rule there established will be followed in this case, and the judgment of the district court affirmed.
Hainer, J., having presided in the court below, and McAtee, J., not sitting; all of the other Justices concurring.