By a petition filed by Jackson against Black in the District
Court of Kay County, Oklahoma Territory, the following case was
made: on the 17th day of November, 1896, Jackson made a homestead
entry upon the S.W. 1/2, sec. 26, T. 28, R. 2 east, I.M. The same
land, prior to that, date had been embraced in a homestead entry
made by Black, but that entry was finally held for cancellation by
the Secretary of the Interior, who by a decision rendered October
26, 1896, denied Black's motion for review and allowed Jackson to
make entry of the land. After that decision, Black continued to
remain in possession of the west eighty acres of the tract, and
refused and neglected to vacate the same, although requested to do
so. He had upon the land a barbed wire fence and other improvements
attached to the realty. It was alleged that he was financially
unable to respond in damages for any injury he was causing the
plaintiff by trespassing upon the land, and that plaintiff had no
adequate remedy other than by this suit. The relief asked was a
mandatory injunction to restrain the defendant from entering upon
or in any manner trespassing
Page 177 U. S. 350
upon or using any portion of the land embraced in the
plaintiff's homestead entry, from removing or in any manner
destroying the fence or other improvements on the lands that were
permanently attached thereto, and for such other and further relief
as the court deemed just and right. The defendant filed an answer,
but it was withdrawn that he might file a demurrer. He demurred to
the application for an injunction upon the grounds, among others,
that it did not state facts sufficient to constitute a cause of
action and the court was without jurisdiction of the subject matter
of the action. The demurrer was overruled, and the defendant, after
excepting to that ruling, filed an amended answer. In this answer,
he set up title in himself as a homestead settler, set forth the
manner in which it had been acquired, alleged that the value of the
property was $6,000, and prayed judgment. In his original answer,
he claimed that he was entitled to a trial by jury, and in his
amended answer he insisted that his rights could not be disposed of
in equity before the court, only. The trial court sustained a
demurrer to the answer, and, the defendant declining to further
answer, judgment was rendered for the plaintiff as prayed for in
the application for a mandatory injunction, the defendant being
enjoined from in any manner entering upon the premises in question
or exercising any control or possession over them except for the
purpose of removing therefrom his improvements, including buildings
and fences for which thirty days' time was given, which judgment
was sustained by the Supreme Court of the Territory.
Held:
(1) That this Court has jurisdiction as the amount involved is
beyond the jurisdictional amount.
(2) That the case made out by the plaintiff was not such as to
entitle him to a mandatory injunction, and that the court of
original jurisdiction erred in determining the cause without a
jury.
By a petition filed by Jackson against Black in the District
Court of Kay County, Oklahoma Territory, the following case was
made:
On the 17th day of November, 1896, Jackson made a homestead
entry upon the S.W. 1/4 sec. 26, T. 28, R. 2 east, I.M. The same
land, prior to that date, had been embraced in a homestead entry
made by Black, but that entry was finally held for cancellation by
the Secretary of the Interior, who, by a decision rendered October
26, 1896, denied Black's motion for review and allowed Jackson to
make entry of the land. After that decision, Black continued to
remain in possession of the west eighty acres of the tract, and
refused and neglected to vacate the same, although requested to do
so. He had upon the land a barbed-wire fence and other improvements
attached
Page 177 U. S. 351
to the realty. It was alleged that he was financially unable to
respond in damages for any injury he was causing the plaintiff by
trespassing upon the land, and that plaintiff had no adequate
remedy other than by this suit.
The relief asked was a mandatory injunction to restrain the
defendant from entering upon or in any manner trespassing upon or
using any portion of the land embraced in the plaintiff's homestead
entry; from removing or in any manner destroying the fence or other
improvements on the lands that were permanently attached thereto,
and for such other and further relief as the court deemed just and
right.
The defendant filed an answer, but it was withdrawn that he
might file a demurrer. He demurred to the application for an
injunction upon the grounds, among others, that it did not state
facts sufficient to constitute a cause of action and the court was
without jurisdiction of the subject matter of the action. The
demurrer was overruled, and the defendant, after excepting to that
ruling, filed an amended answer.
In the first paragraph of the amended answer, the defendant
alleged that he had resided upon the land in question since about
the 16th day of September, 1893, claiming a right thereto under the
laws of the United States; that at the time of settlement thereon,
and thereafter, he was a legally qualified homestead claimant; that
he had done no act of any kind or nature since the 16th day of
September, 1893, disqualifying him to hold the land as a homestead;
that, on the 31st day of October, 1895, he filed a homestead entry
upon the land, and afterwards the plaintiff filed a contest against
such entry upon the ground that his settlement as a homestead
claimant was prior to that of defendant and prior to the filing of
defendant's homestead entry; that it had been finally determined
and decided by the Land Department of the United States that
defendant's settlement upon and entry of the land was subsequent to
that of plaintiff, and defendant's homestead entry was cancelled,
and plaintiff allowed to make homestead entry upon the sole ground
that plaintiff's settlement was prior to the settlement and
homestead entry of the defendant; that, during the time he had
resided upon the land, defendant had
Page 177 U. S. 352
placed thereon lasting and valuable improvements, worth about
$500, claiming to be entitled to the benefit of the laws of the
United States and of the Territory of Oklahoma relating to
occupying claimants, and that his rights "cannot be disposed of in
a case in equity before the court only."
The second paragraph of the answer alleged that, on the 16th day
of September, 1893, and thereafter, the defendant was a native-born
citizen of the United States, in all respects qualified to make
homestead entry upon the land in question; that, on that day, after
12 o'clock, central standard time (a signal for starting from the
outer line of the Cherokee outlet being given), he ran from the
100-foot strip along the south line of the State of Kansas that had
been measured, staked off, and reserved as a gathering place for
those desiring to "run" for lands in the Cherokee outlet, and made
all possible haste to secure and settle upon a suitable piece of
land as a homestead; that there were many thousands of people along
that line, more than could secure homes in the outlet, allowing 160
acres to each qualified entryman; that the plaintiff, not observing
the law, the proclamation of the President, and the rules governing
the opening of those lands to settlement, and for the purpose of
gaining an unlawful and undue advantage of defendant and others
seeking a home in the outlet, crossed the 100-foot reserve around
the outer boundary of the lands prior to 12 o'clock noon, central
standard time, September 16, 1893, and unlawfully and wrongfully
entered upon the lands embraced within the outlet and within the
100-foot reservation known as the Chilocco reservation, and at the
hour of noon, when the outlet was opened to settlement, started on
the race for a home from the south line of that reservation and
about 3 1/2 miles south of the 100-foot reservation along the
northern boundary of the Cherokee outlet, and thereby wrongfully,
unlawfully, and unjustly started in the race for a home three and a
half miles in advance of the defendant and others who observed the
law of Congress opening the lands to settlement and the President's
proclamation pursuant thereto; that plaintiff's prior settlement
was wholly by reason of said advantage; that plaintiff filed in the
United States land office at Perry, Oklahoma Territory, a
contest
Page 177 U. S. 353
against defendant's homestead entry made upon the land described
in the petition on the 31st day of October, 1893, and as grounds
for the contest alleged and claimed that he, plaintiff, settled
upon the land in question, claiming it as his homestead prior to
the settlement and homestead entry of defendant; that, upon the
trial of such contest, it was conclusively proved and admitted by
plaintiff that he had started upon the race from the south line of
the Chilocco reservation as stated; that, upon such trial, the
register and receiver of the land office at Perry, Oklahoma
Territory, found from the evidence that plaintiff had started upon
the race from the point and in the manner mentioned, and also that
his settlement upon and claim of the land was prior to that of
defendant, and the qualification of the plaintiff to acquire a
homestead on account of his having entered upon the land in
violation of the act of Congress opening the same to settlement and
the President's proclamation pursuant thereto was directly in issue
between plaintiff and defendant in the contest case; but that the
register and receiver, although finding from the evidence and
admissions of plaintiff that he had so entered upon said land,
misunderstood and wrongfully interpreted and misapplied the law in
relation to the qualification of plaintiff to take and hold the
land as a homestead, and expressly found as a matter of law that
plaintiff was not disqualified as "a sooner" by reason of having
entered upon the land in the manner aforesaid.
The answer also alleged that the defendant duly appealed from
the decision of the register and receiver to the Commissioner of
the General Land Office, presenting to that officer the same
question with reference to the disqualification of plaintiff to
acquire title to the land as a homestead, but that the Commissioner
misapplied the law and wrongfully and unlawfully sustained the
conclusion of the register and receiver in that regard; that the
defendant then appealed to the Secretary of the Interior, to whom
the same legal question was submitted, and the Secretary also
misapplied the law in relation to the qualification of plaintiff
and wrongfully and unlawfully sustained the findings of the
Commissioner; that the defendant duly filed his motion for review
in the case, in which the question as to the qualification
Page 177 U. S. 354
of plaintiff was presented, and urged a reconsideration and
reversal, but the Secretary, still misunderstanding and misapplying
the law, wrongfully and unlawfully refused a review, and wrongfully
and contrary to law cancelled the homestead entry of defendant and
permitted plaintiff to make homestead entry of the land, although
plaintiff was at the time, and still is, wholly disqualified to
acquire title to it based upon a prior settlement by reason of his
having entered upon the Cherokee outlet in violation of law; that,
by reason of such disqualification, the plaintiff could never
acquire the title to the land, nor a greater estate therein than a
trust estate for the sole benefit of the defendant; that defendant
was lawfully entitled to reside upon the land as a homestead and
acquire the title thereto by compliance with the laws of the United
States and the rules of the Land Department, and that plaintiff,
being disqualified to acquire title, should not be heard in this
action to demand that defendant be ejected from the land and his
home and improvements thereon.
The answer further alleged that, if the defendant were ejected
from the land and his home and improvements thereon the plaintiff
would relinquish to the government of the United States for a
valuable consideration all his claim to and interest in the land,
and the same would
"be entered as a homestead by some other person qualified to
enter and hold the same and a stranger to the disqualification and
wrongful acts of the plaintiff herein; that said land, with the
improvements thereon by this defendant, could be transferred in the
manner aforesaid for the sum of $6,000; that he has been by
temporary order of this Court restrained from exercising the right
of possession and control over all of said land, with the exception
of about five acres occupied by his dwelling and improvements
immediately surrounding the same, and that he is ready and willing
to execute to the plaintiff a good and sufficient bond to
compensate him for all loss of every kind or nature occasioned by
defendant's occupancy and detention of said five acres and
improvements, provided defendant is allowed to retain his
possession thereof and so remain in position to assert his rights
to all of said land as soon as he can possibly do so in accordance
with law. "
Page 177 U. S. 355
The defendant prayed first that the plaintiff be not allowed to
further maintain his action for the possession of the land or any
part thereof. Second, hat in the event that prayer was not granted,
the plaintiff be denied the right to maintain his action to the
extent of wholly ejecting the defendant from the five acres and his
dwelling and improvements situated thereon until such time as the
plaintiff acquired a patent to the land and the defendant was in a
position to commence suit for the purpose of having plaintiff's
title so acquired declared to be held in trust for him.
The trial court sustained a demurrer to the answer, and, the
defendant declining to further answer, judgment was rendered for
the plaintiff as prayed for in the application for a mandatory
injunction, the defendant being enjoined from in any manner
entering upon the premises in question or exercising any control or
possession over them except for the purpose of removing therefrom
his improvements, including buildings and fences, for which thirty
days' time was given.
This judgment was affirmed in the supreme court of the
territory. That court, in its opinion, held (using the words of the
syllabus prepared by the court) that
"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."
6 Okl. 751.
MR. JUSTICE HARLAN, after stating the facts, delivered the
opinion of the Court.
1. The final judgment of the supreme court of the territory
Page 177 U. S. 356
can be reexamined here if the value of the matter in dispute be
sufficient to give this Court jurisdiction. The defendant claimed
to have acquired by his entry and settlement a vested interest in
the entire land covered by his entry, and insisted that, even if
the plaintiff obtained a patent therefor, the title would be held
in trust for him. He proceeds in his defense upon the ground that,
after residing upon the land for the period designated in the
statute, he will be entitled under the law to a patent. It ought
not to be assumed that he will put himself in such position that he
cannot demand a patent. Although the naked legal title remains in
the United States in trust for the person who may earn it, we think
that, in determining the value of the matter in dispute, we should
look at the value of the land, not simply at the value of the right
of present possession. According to the weight of proof, the value
of the land embraced by the homestead entry of Black is more than
the sum required for our jurisdiction. 23 Stat. 443, c. 355; 26
Stat. 81, 86, c. 182, § 9. Besides, the demurrer admitted the
averment in the answer to the effect that the land with the
defendant's improvements thereon could be transferred in the manner
stated in the answer for the sum of $6,000. The motion to dismiss
the appeal must therefore be overruled.
2. This case having been determined on demurrer to the answer,
it must be taken as true that Black resided upon the land in
dispute on and after September 16, 1893, claiming the right to do
so in virtue of the laws of the United States and of a homestead
entry made before the one made by Jackson. It appears that the Land
Office recognized the prior right to be in Jackson. This action of
the Land Office, Black contends, was erroneous in matter of law,
and he has announced his purpose, in the event a patent is issued
to Jackson, to institute appropriate judicial proceedings, the
object of which will be to have it declared that the legal title is
held in trust for him. He insists that, although, in the absence of
fraud, the courts will not go behind the facts found by the Land
Department in any contest before it relating to the administration
of the public lands, he is not concluded by the decision of that
Department upon questions of law.
If parties are injuriously affected by any action of the
Land
Page 177 U. S. 357
Department based upon an erroneous view of the law, the courts
have power in some form to protect their rights against such
illegal action. In
Cornelius v. Kessel, 128 U.
S. 456,
128 U. S. 461,
this Court said:
"The power of supervision possessed by the Commissioner of the
General Land Office over the acts of the register and receiver of
the local land offices in the disposition of the public lands
undoubtedly authorizes him to correct and annul entries of land
allowed by them, where the lands are not subject to entry, or the
parties do not possess the qualifications required, or have
previously entered all that the law permits. The exercise of this
power is necessary to the due administration of the Land
Department. If an investigation of the validity of such entries
were required in the courts of law before they could be cancelled,
the necessary delays attending the examination would greatly
impair, if not destroy, the efficiency of the Department. But the
power of supervision and correction is not an unlimited or an
arbitrary power. It can be exerted only when the entry was made
upon false testimony, or without authority of law. It cannot be
exercised so as to deprive any person of land lawfully entered and
paid for. By such entry and payment, the purchaser secures a vested
interest in the property and a right to a patent therefor, and can
no more be deprived of it by order of the Commissioner than he can
be deprived by such order of any other lawfully acquired property.
Any attempted deprivation in that way of such interest will be
corrected whenever the matter is presented so that the judiciary
can act upon it."
So, in
Sanford v. Sanford, 139 U.
S. 642,
139 U. S. 647,
it was said that where the matters determined by the Land
Office
"are not properly before the Department, or its conclusions have
been reached from a misconstruction by its officers of the law
applicable to the cases before it, and it has thus denied to
parties rights which, upon a correct construction, would have been
conceded to them, or where misrepresentations and fraud have been
practiced, necessarily affecting its judgment, then the courts can,
in a proper proceeding, interfere and control its determination so
as to secure the just rights of parties injuriously affected"
-- citing
Quinby v. Conlan, 104 U.
S. 420,
104 U. S. 426;
Baldwin v. Stark, 107 U. S. 463,
107 U. S.
465.
Page 177 U. S. 358
As to Jackson's right to possession, it is clear that, although
successful in his contest with Black before the Land Office, no
patent could issue to him under the original homestead law until
after the expiration of five years from the date of his entry, and
not then except upon proof that he, or if he be dead his widow, or
if she be dead her heirs or devisees, prove
"by two credible witnesses that he, she, or they have resided
upon or cultivated the same for the term of five years immediately
succeeding the time of filing the affidavit [required by § 2290 of
the Revised Statutes], and makes affidavit that no part of such
land has been alienated, except as provided in § 2288, and that he,
she, or they will bear true allegiance to the government of the
United States; then, in such case, he, she, or they, if at that
time citizens of the United States, shall be entitled to a patent,
as in other cases provided by law."
Rev.Stat. § 2291. But, by the third section of the Act of May
14, 1880, entitled "An Act for the Relief of Settlers on Public
Lands," 21 Stat. 140, c. 89, it was provided
"that any settler who has settled, or who shall hereafter
settle, on any of the public lands of the United States, whether
surveyed or unsurveyed, with the intention of claiming the same
under the homestead laws, shall be allowed the same time to file
his homestead application and perfect his original entry in the
United States Land Office as is now allowed to settlers under the
preemption laws to put their claims on record, and his right shall
relate back
to the date of settlement, the same as if he
settled under the preemption laws."
It thus appears that Jackson holds only an inchoate title to the
land in dispute, and that he may so conduct himself before making
final proof and securing final certificate as to forfeit his right
to obtain a patent based upon the decision of the Land Office.
By the decree below, the defendant is enjoined from entering
upon the premises in question or exercising any further control or
possession over them except to remove his improvements within
thirty days after the decree. In his original answer, the defendant
claimed that he was entitled to a trial by jury, and in his amended
answer he insisted that his rights could not be disposed of in
equity before the court only.
Page 177 U. S. 359
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 Okl. 24;
Peckham v. Faught, 2 Okl. 173;
Reaves v. Oliver, 3 Okl. 62;
Woodruff v. Wallace,
3 Okl. 355;
Procter v. Stuart, 4 Okl. 679;
Barnes v.
Newton, 5 Okl. 428;
Laughlin v. Fariss, 7 Okl. 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.
We think that the decision in
Laughlin v. Fariss, 7
Okl. 1, 5-7, 9, 11, should be accepted as a correct exposition of
the law of the territory. What was that case? One F. M. Fariss made
a homestead entry on land, and received a certificate of cash
entry. The interest so acquired was conveyed by deed to W. D.
Fariss. Before F. M. Fariss made his final proof, Laughlin filed
against him a contest on the ground of prior settlement. That
contest finally came before the Secretary of the Interior for
review, and was decided adversely to Laughlin. Subsequently, and
before F. M. Fariss made his final proof, Laughlin filed another
contest alleging that Fariss was disqualified to make a homestead
entry by reason of having entered the Oklahoma country in violation
of law. Fariss' assignee sued Laughlin, alleging that he was
entitled to the sole and exclusive occupancy of the land, and
asking that an injunction be awarded restraining Laughlin from
cultivating or interfering with the land and removing him from the
premises.
The questions presented to the Supreme Court of Oklahoma for
decision in that case were: 1. Did the petition show that plaintiff
had an equitable title to the tract of land in controversy?
Page 177 U. S. 360
2. If so, was that title a sufficient basis for an action at law
for the recovery of the possession of the land? 3. Should questions
1 and 2 be answered in the affirmative, then the inquiry was
whether the petition contained a sufficient statement of facts to
justify the relief sought and obtained?
The court answered the first question upon the authority of
Flanagan v. Forsythe, 6 Okl. 225, in which it was held
that
"when a homestead entryman has complied with all the
requirements of the federal statutes applicable to the disposal of
the tract of land occupied by him, and has made his final proof,
paid the amount of money required, and received final certificate
therefor, he has a complete equitable title to said land, with the
naked legal title only remaining in the government."
In answering the second question in the affirmative, the court
referred to section 614 of the Territorial Code of Civil Procedure,
which provides:
"In an action for the recovery of real property, it shall be
sufficient if the plaintiff state in his petition that he has a
legal or equitable estate therein, and is entitled to the
possession thereof, describing the same, as required by section
127, and that the defendant unlawfully keeps him out of possession.
It shall not be necessary to state how the plaintiff's estate or
ownership is derived."
Okl.Stat. 1893, 864, Title Procedure -- Civil. Section 127, here
referred to, provides that,
"in any action for the recovery of real property, it shall be
described with such convenient certainty as will enable an officer
holding an execution to identify it."
The supreme court of the territory said:
"It would seem that the language of this section is too plain to
need the support of authority to show that an equitable title or
estate in land is a sufficient basis for an action in the nature of
ejectment, but if such were necessary, it can be found in abundance
by consulting the decisions of the supreme court of the state from
which the statute was taken,"
citing
Simpson v. Boring, 16 Kan. 248;
Kansas Pac.
Ry. Co. v. McBratney, 12 Kan. 9;
Duffey v. Rafferty,
15 Kan. 9;
State v. Stringfellow, 2 Kan. 263;
Atchison, Topeka &c. Railroad v. Pracht, 1 P. 319. The
court added:
"It is also apparent that the allegations
Page 177 U. S. 361
contained in plaintiff's petition regarding his title and right
of possession are amply sufficient to entitle him to maintain an
action of forcible detainer for the possession of said tract of
land.
Price v. Olds, 9 Kan. 66;
Conaway v. Gore,
27 Kan. 122."
The third question was answered in the negative, the court
reaffirming the principle announced in
Richardson v.
Penny, 6 Okl. 328, in which it was said:
"We still hold to the well if not universally established
doctrine that when a party has a plain and adequate remedy at law,
he cannot invoke the powers of a court of equity to issue its writ
of injunction."
In the course of its opinion, the court, having stated that it
was conceded that the action of forcible entry and detainer would
lie in a case like the one then before it, said:
"This remedy by injunction, both mandatory and prohibitive in
character, may and does sometimes become a very far-reaching and
oppressive, as well as a speedy and effective, one, and should only
be granted by courts of equity in cases where the applicants
therefor bring themselves clearly within the well defined and
established rules authorizing the issuance of same; hence, such
courts rarely deem it necessary or advisable to interfere in this
manner, to aid a person endeavoring to recover the possession of
real property,"
citing High on Injunctions, 2d ed. §§ 354, 355, 360, and
Lacassagne v. Chapuis, 144 U. S. 119,
144 U. S. 124.
The rule, the court observed, was clearly and concisely stated by
this Court in
Lacassagne v. Chapuis, in which it was
said:
"The plaintiff was out of possession when he instituted this
suit, and by the prayer of this bill he attempts to regain
possession by means of the injunction asked for. In other words,
the effort is to restore the plaintiff by injunction to rights of
which he had been deprived. The function of an injunction is to
afford preventive relief, not to redress alleged wrongs which had
been committed already. An injunction will not be used to take
property out of the possession of one party and put it into that of
another. . . . The plaintiff has a full, adequate, and complete
remedy at law, and the case is not one for the jurisdiction of a
court of equity."
The supreme court of the territory thus concluded its
opinion
Page 177 U. S. 362
in
Laughlin v. Fariss:
"We hold that the action of injunction will not lie to adjust
possessory rights to a tract of land after the equitable title
thereto has passed from the government of the United States and
become vested in an individual, unless in a case which presents
some recognized special ground therefor, which must be one other
than that one party claims that he is the owner and entitled to the
immediate possession thereof, and that the other party unlawfully
and without any right whatever holds and detains such possession.
We therefore conclude that the facts stated by the plaintiff below
in his amended petition are not sufficient to entitle him to the
interference of a court of equity."
In the decision in
Laughlin v. Fariss all the justices
of the supreme court of the territory concurred, including those
who constituted the majority when the present case was decided. And
we cannot find that that court has in any case withdrawn or
qualified the ruling that an entryman, out of possession and having
a decision by the Land Office in his favor, may proceed against his
adversary in possession by an action of forcible detainer, and thus
obtain possession without resorting to the extraordinary remedies
used by courts of equity. According to the decisions of that court,
Black as between himself and his successful adversary, was in
possession without color of title. Now, by the statutes of the
territory, in the article relating to forcible entry and detainer,
if it be found that lands and tenements after a lawful entry "are
held unlawfully," then the justice "shall cause the party
complaining to have restitution thereof;" and it is provided that
proceedings under that article may be had in all cases "where the
defendant is a settler or occupier of lands and tenements, without
color of title, and to which the complainant has the right of
possession." Okl.Stat. 1893, 919, 920, §§ 4805, 4806.
In the opinion in the present case the supreme court of the
territory said nothing about defendant's contention that he was
entitled to a trial by jury. Speaking by the same justice who in
the court below delivered the opinion in the present case, the
supreme court of the territory, in
Barnes v. Newton, 5
Okl. 428, 432, conceded that in a case between contesting
entrymen
Page 177 U. S. 363
the one who obtained the decision of the Land Office might avail
himself of the statutory provisions relating to forcible entry and
detainer, but that such a remedy was not sufficiently efficacious,
for the reason that "by delays and appeals a party in possession of
a homestead could keep his adversary out of possession of the land
for years." But the same reason could be urged to justify the
extraordinary remedy of a mandatory injunction in order to put a
defendant out of possession, even where the plaintiff was entitled
to maintain ejectment or an action in the nature of ejectment. The
suggestion referred to leaves out of view the distinction made by
the Constitution of the United States between cases in law and
cases in equity.
Robinson v.
Campbell, 3 Wheat. 212,
16 U. S. 223;
Payne v. Hook,
7 Wall. 425;
Van Norden v. Morton, 99 U. S.
378;
Smyth v. Ames, 169
U. S. 467,
169 U. S. 516.
And it also fails to recognize the provisions of the Seventh
Amendment securing the right of trial by jury in "suits at common
law" where the value in controversy exceeds $20. That Amendment, so
far as it secures the right of trial by jury, applies to judicial
proceedings in the territories of the United States.
Webster v.
Reid, 11 How. 437,
52 U. S. 460;
American Pub. Co. v. Fisher, 166 U.
S. 464,
166 U. S. 466;
Springville v. Thomas, 166 U. S. 707. So
that a court of a territory authorized, as Oklahoma was, to pass
laws not inconsistent with the Constitution of the United States,
26 Stat. 81, 84, c. 182, § 6, could not proceed in a "common law"
action as if it were a suit in equity, and determine by mandatory
injunction rights for the protection or enforcement of which there
was a plain and adequate remedy at law according to the established
distinctions between law and equity. And this evidently is in
accordance with the statutes of Oklahoma providing that, while the
court must try issues of law, unless referred in the mode
prescribed,
"issues of fact arising in actions for the recovery of money or
of specific real or personal property shall be tried by a jury
unless a jury trial is waived or a reference be ordered."
Okl.Stat. 1893, 809, § 4156.
In the case before us no special grounds are disclosed that
would authorize the court to issue a mandatory injunction and
determine without a jury the issue as to the right of
possession.
Page 177 U. S. 364
If it be said that the plaintiff's residence upon the land for a
given time is necessary in order that he may earn a patent, the
answer is that the defendant is not alleged to be in the actual
possession of the entire land embraced by the plaintiff's entry.
Nor does it appear that the plaintiff may not, without interference
by the defendant, maintain a residence upon that part of the land
which is not in the actual possession of the defendant, and do all
that may be requisite in order to earn a patent. We may also
observe that it is not alleged that the defendant is doing any
actual injury to the part of the land remaining in his possession.
It does not appear that he has done anything except to continue in
possession of that part. If Black prevents Jackson from taking
possession of the 80 acres in question, he is entitled to bring his
action of forcible detainer and to recover possession unless it
appears that the Land Office erred, as matter of law, in deciding
for him. It is not meant by this that an action of forcible
detainer is the only remedy that can be adopted by the
plaintiff.
As in Oklahoma the distinction between actions at law and suits
in equity is abolished -- each action being called a civil action,
whatever the nature of the relief asked, Okl.Stat. 1893, 764, §
3882 -- we perceive no reason why the case may not proceed in the
trial court under the pleadings as they have been framed, with the
right of the defendant to a trial by jury in respect of all issues
which, according to the recognized distinctions between actions at
common law and suits in equity, are determinable in that mode.
3. One of the defenses made by Black is that the plaintiff
entered upon the land in violation of the Act of March 1, 1889, 25
Stat. 759, c. 317, and of the Act of March 2, 1889, 25 Stat. 980,
1005, c. 412, as well as of the proclamation of the President of
March 23, 1889, 26 Stat. 1544, 1546. The acts and proclamation
referred to related to the lands obtained by the United States
under the agreement with the Muscogee or Creek Nation of Indians in
the Indian Territory. The contention of the defendant is that the
plaintiff, by his conduct, disqualified himself from acquiring any
interest in the tract of land here in dispute which was part of the
lands obtained from the Muscogee or
Page 177 U. S. 365
Creek Indians, and consequently the Land Office erred, as matter
of law, in its decision for the plaintiff.
Smith v.
Townsend, 148 U. S. 490;
Payne v. Robertson, 169 U. S. 323;
Calhoun v. Violet, 173 U. S. 60,
173 U. S. 62. No
opinion was expressed on this question by the supreme court of the
territory, and we need not now express an opinion. If the plaintiff
should proceed against the defendant in some other mode than by
injunction, the facts connected with his alleged unlawful entering
upon the lands opened for settlement under the above acts and
proclamation can all be proved, and any question arising out of
them as to his disqualification to acquire any interest whatever in
the land in dispute can then be determined.
We are of opinion that the case made out by the plaintiff was
not such as to entitle him to a mandatory injunction, and that the
court of original jurisdiction erred in determining the cause
without a jury. The decree of the Supreme Court of the Territory is
therefore reversed, and the cause is remanded with directions to
set aside that decree and for such further proceedings as will be
consistent with law and this opinion.
Reversed.
