( Reaves v. Oliver, 3 Okla. 62; Woodruff v. Wallace, 3 Okla. 355). And it has also been held that where two persons were each contesting for a right to a tract of land covered by a homestead entry, the courts had jurisdiction of the subject matter of possession, and after ascertaining the right of possession, to enforce the same by injunction. ( Sproat v. Durland, 2 Okla. 24; Jackson v. Jackson, 17 Or. 110, 19 P. 847; Lee v. Watson, [Mont.], 38 P. 1077; Wood v. Murry, 85 Ia. 585, 52 N.W. 356). It is claimed, however, upon the part of appellant, that in the case we are now passing upon a different question is presented; that under the answer the appellant is the equitable owner of the land, and that the court below should have so found and refused the order of injunction.

Every case cited within the Graham opinion limited the jurisdiction of the court to protection of one's right of possession until the government heard and ruled on the conflicting claims. The phraseology differed, but the conclusion in each was the same: ". . . until such time as the government, . . . puts forever at rest the title to the lands" ( Sproat v. Durland, 2 Okla. 24 [ 35 P. 682, 689]; ". . . until the government parts with its title" ( Fulmele v. Camp, 20 Colo. 495 [39 P. 407, 408]); ". . . until the Land Department hears and determines the question as to the character of the land" ( Bay v. Oklahoma Southern Gas, Oil Min. Co., 13 Okla. 425 [ 73 P. 936, 939]; ". . . until the controversy is finally determined by that department"; (12 Am. Eng.Ann. Cases 32).

(See cases heretofore cited.) The cases of Gauthier v. Morrison, 232 U.S. 452 [34 Sup. Ct. 384, 58 L.Ed. 680], and Sproat v. Durland, 2 Okl. 24, 25 [ 35 P. 682, 886], while upholding possessory actions, likewise approve the doctrine that courts will not interfere with the functions of the land department. We may here add, also, that the case of Graham v. Superior Court, supra, did not go any further than simply affirm the principle that the right of possession would be upheld and trespassing prevented.

" A long list of authorities is cited to the following statement: "Where land in the possession of one claiming under the preemption or homestead law is wrongfully and forcibly entered upon by another, the preemptor or homestead entryman may maintain an action for the possession thereof pending the decision of the land department as to the title to the property." Likewise, in Sproat v. Durland, 2 Okl. 24 [ 35 P. 682], the Supreme Court of Oklahoma ruled as follows: "It may be stated, as a well-settled proposition, that the courts have the right to deal with the question of possession, as between settlers upon the public domain, until such time as the government, by its issuance of a patent, puts forever at rest the title to the lands. It is the duty of the court, in dealing with such matters, to exercise its equitable powers, and see to it that possession is given to the person who, under the laws of congress, is entitled thereto; and, when it is ascertained that a person claiming the right to the use and occupancy of a tract of land, the title of which is still in the United States, is, under the laws of congress, a mere trespasser, it becomes the plain duty of the courts having jurisdiction to give to the proper party the possession of the land upon which the trespass is committed. . . . To say that no relief can be granted, or that our courts are powerless to do justice between li

And the exercise of this jurisdiction has been not only sanctioned by the appellate courts in many of the public-land States, but also recognized and approved by this court. Woodsides v. Rickey, 1 Or. 108; Colwell v. Smith, 1 Wn. Ter. 92; Ward v. Moorey, 1 Wn. Ter. 104, 107; Arment v. Hensel, 5 Wn. 152; Fulmele v. Camp, 20 Colo. 495; Wood v. Murray, 85 Iowa 505; Matthews v. O'Brien, 84 Minn. 505; Zimmerman v. McCurdy, 15 N.D. 79; Whittaker v. Pendola, 78 Cal. 296; Sproat v. Durland, 2 Okla. 24, 45; Peckham v. Faught, 2 Okla. 173; Lytle v. Arkansas, 22 How. 193, 205; Marquez v. Frisbie, 101 U.S. 473, 475; Black v. Jackson, 177 U.S. 349; United States v. Buchanan, ante, p. 72. See also Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U.S. 301, 308, 315; Humbird v. Avery, 195 U.S. 480, 504; Bunker Hill Co. v. United States, 226 U.S. 548, 550. It was well said by the Supreme Court of Oklahoma in Sproat v. Durland, supra: "To say that no relief can be granted, or that our courts are powerless to do justice between litigants in this class of cases, pending the settlement of title in the Land Department, would be the announcement of a doctrine abhorrent to a sense of common justice. It would encourage the strong to override the weak; would place a premium upon greed and the use of force, and in many instances lead to bloodshed and crime.

— A filed a homestead entry for a tract of Government land. B initiated a contest, alleging that A was disqualified from entering the land. The contest was by the Land Department decided in favor of A. During the pendency of such contest B filed an amended affidavit of contest, alleging a different ground of disqualification upon the part of A. Shortly after B first instituted the first contest, B in some manner became possessed of about 25 acres of the land, and held such possession until after the final decision upon the first contest. Held, that upon the authority of Sproat v. Durland, 2 Okla. 24, A was entitled to an injunction restraining B from interfering with the possession of A, and requiring him to remove from the land in dispute." 6 Okla. 696.From the judgment of the Supreme Court of the Territory the defendant appealed to this court.

What circumstances under the laws of Oklahoma will justify the use of a mandatory injunction for the purpose of ousting a person of the possession of land and putting his adversary in possession — neither party having the legal title — is left in some doubt by the decisions of the Supreme Court of that Territory. Sproat v. Durland, 2 Okla. 24; Peckham v. Faught, 2 Okla. 173; Reaves v. Oliver, 3 Okla. 62; Woodruff v. Wallace, 3 Okla. 355; Procter v. Stuart, 4 Okla. 679; Barnes v. Newton, 5 Okla. 428; Laughlin v. Fariss, 7 Okla. 1; Glover v. Swartz, 58 P. 943; Brown v. Donnelly, 59 P. 975. Some of the decisions seem to restrict the right to such an injunction to cases in which the defendant was a mere trespasser upon the particular land in dispute without color or pretense of claim or title, while others recognize the appropriateness of that remedy where a plaintiff seeks possession after succeeding in a contest before the Land Office with one who at the initiation of such contest was in peaceable possession and in good faith contending for his right to such possession.

' In Beach, Inj., there is a reference, in section 1392, to the case of Sproat v. Durland (Okl.; 1894) 35 P. 682, as an illustration of the plastic character of the injunction process when required to be used in a new and unfamiliar environment. The court there held that:

Municipal corporation which owns fee to land possesses all property rights with respect thereto, including right to exclude therefrom whomsoever it will, unless such full property rights have been diminished by dedication or have been restrained by statute. Murphy v. Montgomery, 11 Ala. 586; People v. Malone, Sup., 175 N.Y.S. 465; Board of Councilmen v. Pattie, 227 Ky. 343, 12 S.W.2d 1108; State ex rel. White v. Cleveland, 125 Ohio St. 230, 181 N.E. 24, 86 A.L.R. 1172; Coughlin v. Park Dist., 364 Ill. 90, 4 N.E.2d 1; State ex rel. Herbrandson v. Vesperman, 52 N.D. 641, 204 N.W. 202; Northern Pac. R. Co. v. Lewis, 162 U.S. 366, 16 S.Ct. 831, 40 L.Ed. 1002; Turley v. Tucker, 6 Mo. 583, 35 Am.Dec. 449; Sproat v. Durland, 2 Okl. 24, 35 P. 682; United States v. Bernard, 9 Cir., 202 F. 728. Even in case of private proprietor of land, dedication will not be implied against him in favor of public in absence of clear proof of such intent upon his part. Wilson v. Lakeview Land Co., 143 Ala. 291, 39 So. 303; Town of Leeds v. Sharp, 218 Ala. 403, 118 So. 572; Irwin v. Dixion, 9 How. 10, 13 L.Ed. 25. Mere user of land of private proprietor by members of public with his acquiescence is presumed to be permissive merely.

Joyce on Injunctions, § 97 a; 32 C. J. 22; 14 R. C. L. 315; 28 Am. Jur. 213. They are recognized as a proper exercise of equitable jurisdiction in this state. Sproat v. Durland, 2 Okla. 24, 35 P. 682; Dusbabek v. Local Bldg. Loan Ass'n, 178 Okla. 592, 63 P.2d 756. They have been granted in many cases involving varying facts. Joyce, above, § 103; 28 Am. Jur. 214.