Statement of the case, finding of facts and opinion by May 1st, 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 northeast quarter of section thirty-four, township twelve, north of range three west, 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 twenty acres theretofore occupied by one Kate A. Woodruff, until the further order of the court; and that the 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 two hundred dollars ($200.00) 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 northeast quarter of section thirty-four, township twelve, north of range three west 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 *Page 26 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 side thereof was built by the public for the purpose of obtaining a highway, which fence completely enclosed said quarter section of land.
"4. That Kate A. Woodruff had enclosed 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 enclosed on the west side of said land about four or five acres, upon which he had a dwelling house, and within which enclosure 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 *Page 27 has held possession of all 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 2nd 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 *Page 28 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, enclosed, cultivated and occupied by Kate A. Woodruff until that time. On April 29 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 upon 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 benefit 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 at such hearing said restraining *Page 29 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:
"1. That he denied 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.
"2. 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.
"3. That defendant denies that upon the 29th day of April, 1893, at the time when Kate A. Woodruff filed in the United States land office at Oklahoma City, O. T., a relinquishment of her entry on said land, that the plaintiff herein was a settler on said land under the homestead laws of the United States.
"4. Defendant denies that upon the 29th day of April, 1893, or at any other time he has invaded the possession of the plaintiff herein, in any part of said land.
"5. Defendant further shows the following facts concerning his right to and possession of the said tract of land as follows:
"That your affiant was on the 22nd day of April, A.D. 1889, and has ever since been, a duly qualified homestead entryman for said tract of land; that on the afternoon of April 22, 1889, he made a personal settlement upon said tract of land by going upon the same, setting up a stake and flag, cutting some poles and laying them together in a square form, and by camping on said tract that night; that on April 23, 1889, he surveyed out the lines of said tract and then *Page 30 went to the United States land office at Guthrie, O. T., to make homestead entry of the same, leaving his baggage, tent and equipage upon said tract of land.
"That upon entering the land office at Guthrie, O. T., your affiant was informed that said tract of land was entered by Kate A Woodruff; that your affiant immediately began to take steps to protect his right to said tract of land, and filed a contest thereon on May 8, 1889, charging that he was the first legal settler on said tract of land, and that said Kate A. Woodruff was not qualified to enter said tract of land, for the reason that she had entered upon and occupied a portion of the lands declared open to settlement and entry by the President's proclamation of March 23, 1889, prior to twelve o'clock, noon, of April 22, 1889, and after March 2, 1889, contrary to the Act of Congress, approved March 2, 1889, relative to the Oklahoma lands, and in said contest your petitioner asked for a preference right to enter said tract under the second section of the Act of May 14, 1880; that a hearing was had on said affidavit of contest and decision duly rendered by the register and receiver of the United States land office at Oklahoma City, O. T., in favor of this defendant, and that said decision was duly affirmed by the honorable commissioner of the general land office, Washington, D.C., from which the said Kate A. Woodruff duly perfected an appeal to the honorable secretary of the interior department, Washington, D.C. That on November 2, 1892, defendant filed a suspended homestead application for said tract and deposited the fees and commissions in said entry; that on the 29th day of April, 1893, said Kate A. Woodruff filed a relinquishment of her homestead entry and a dismissal of her said appeal in the United States land office at Oklahoma City, and this defendant was at that time permitted, by virtue of his preference right, by reason of the cancellation of the said homestead entry of the said Kate A. Woodruff, under contest, and by reason of his suspended application aforesaid, filed November 2, 1892, to make homestead entry 6976, in said Oklahoma City land office, on the 29th day of April, 1893, for the land in dispute herein, said suspended application being on that day placed of record, for which entry he received receiver's duplicate *Page 31 receipt 6976, a copy of which is hereto attached and made a part hereof; that on said day prior to the execution of the relinquishment of the said Kate A. Woodruff, and his homestead entry above mentioned, he purchased of the said Kate A. Woodruff all of her improvements now on said land, which consisted of a house, cultivated ground, well, fencing and all other improvements claimed by her; that on said day and for a long time prior thereto, the said Kate A. Woodruff had the exclusive, peaceable and lawful possession of all of said tract of land save and except certain improvements claimed by one Martin C. Lawrence, situated about midway north and south on the west side of said land, and containing some five or six acres, and enclosed by a wire fence, and the said Kate A. Woodruff had all of said tract save and except the tract above described, the possession of which was claimed by the said Martin C. Lawrence, enclosed by a good and sufficient wire fence, and used the same as a pasture, since the summer of 1889; that on the 29th day of April, 1893, this defendant made personal settlement upon said tract of land, going upon the same in person, taking possession of said house, moving a portion of his furniture therein and establishing his residence thereon; that he immediately turned his cattle into the enclosure above mentioned, surrounded by fence, bought of the said Kate A. Woodruff; that he immediately started his team to plowing upon the cultivated land thereon, and assumed the control and possession of the whole of said premises except the five or six acres heretofore mentioned, contained in the enclosure of Martin C. Lawrence, said settlement being prior to his said homestead entry of this defendant.
"6. That on the 10th day of December, 1892, the above mentioned Kate A. Woodruff leased to said J. W. Sproat and S. G. Sproat, the sons of the plaintiff herein, said tract of land and all improvements thereon and including the pasture heretofore mentioned, from the possession of which the plaintiff seeks to exclude the defendant all of which more fully appears by the articles of agreement between said parties hereto attached, marked 'Exhibit B,' and made a part of this answer; that soon after said *Page 32 lease was made, the said lessees went into possession of said premises, placed in said pasture a number of milch cows, and other stock, and placed in charge thereof, as their agent, Samuel Sproat, the plaintiff in this action, who has remained in charge of said stock, and as the agent of said lessees, in the possession of said premises ever since said time, and still so remains in possession of said premises, by force, as the agent of said lessees, notwithstanding said lease was cancelled and all rights surrendered thereunder by the said S. G. Sproat and J. W. Sproat, in consideration of the payment to them of the sum of one hundred dollars ($100.00) on the 28th day of April, 1893, as will more fully appear by the written release executed by the said S. G. Sproat and J. W. Sproat, endorsed upon the articles of lease hereto attached, marked 'Exhibit B' and made a part of this answer.
"7. That the plaintiff, on the 29th day of April, 1893, entered the enclosure of the defendant, heretofore mentioned as composing this defendant's pasture on said tract, and drove his cattle therefrom into the highway; that again on the 30th day of April, 1893, the plaintiff again drove said cattle of the defendant from said pasture, although requested by the defendant to desist from such unlawful acts, and that he threatened to wholly exclude the cattle of the defendant from said pasture, and if necessary to use force to that end.
"8. That the said Samuel Sproat, plaintiff, has turned certain cattle and horses into the enclosed pasture of this defendant on said tract of land, and now occupies and uses said pasture, and threatens to occupy and use the same to the exclusion of this defendant and to his great damage; that said plaintiff interferes with the peaceable use and possession of this defendant of said tract of land, enclosed in said pasture fence, by forcibly turning therefrom defendant's stock, and threatens to continue said acts of trespass, and that the said plaintiff is wholly insolvent, and that your defendant has no adequate remedy at law, and that an injunctional order against said plaintiff will avoid a multiplicity of law-suits, and prevent a great and irreparable injury to this defendant. *Page 33
"Wherefore, the defendant asks that the prayer of the plaintiff herein be denied, that the temporary restraining order granted May 1, 1893, be dissolved; that an injunction may issue directed against said Samuel Sprout, his agents, employees and servants, and all persons acting through, under or with him, restraining him and each of them, from pasturing horses, cattle or other stock of any kind, upon said tract of land within the enclosure of this plaintiff herein set forth, from trespassing upon, using or occupying in any manner any part of said enclosure or from interfering in any manner with the possession of the defendant in and to any part of said tract of land, or the improvements thereon, located and purchased as heretofore set forth, from the said Kate A. Woodruff, and from driving out, removing or interfering with cattle, horses, or other stock of the defendant, kept in the enclosure of said defendant on said premises; from fencing, breaking up, plowing, planting or in any manner using any of the land on said tract of land in dispute, covered, occupied by, or surrounded by the improvements of this defendant, and comprising all of said claim, except said tract of five or six acres herein mentioned as the improvements of Martin C. Lawrence, together with the costs of this action, and such other relief as equity may require."
Attached to the answer of defendant appears a copy of receiver's duplicate receipt No. 6976 issued from the Oklahoma City land office showing that Otto C. Durland entered the land as a homestead April 29, 1893; also appears an exhibit setting forth a lease, executed by Kate A. Woodruff to Joseph W. Sproat and S. Grimes Sproat, bearing date December 16, 1892, and leasing all the land except that portion occupied by Martin C. Lawrence.
The lease is for the term of one year, beginning on March 1, 1893. The instrument has the usual covenants found in leases, and, in addition thereto, a provision that the lessor reserved the right to use and occupy the house standing on that portion of the land *Page 34 leased. That the lessees should in no manner allow any persons, other than themselves, to establish a residence upon the land, nor to enter into possession of any portion of the land, nor sub-let to any person, nor deliver them any portion of said tract, and a violation of such covenants or entering into collusion with any person for such purpose, should render void the lease; also a further covenant appears to the effect that the lease was in no way to be used for the purpose of affecting the homestead right of Kate A. Woodruff. On the back of the instrument there appears the following endorsements:
"OKLAHOMA CITY, O. T., April 25, 1893.
"For and in consideration of the sum of $100.00 we hereby cancel this lease and waive all settlement claims of any nature whatsoever under the same to the tract herein described and hereby deliver possession of said tract to first party, Kate A. Howe.
(Signed) "S. G. SPROAT,
"J. W. SPROAT."
The reply of Sproat to the answer raises no new issues in the cause. Numerous affidavits are filed in support of the petition and answer and from the records as thus presented we find the following to be the facts in the case.
1. April 22, 1889, Otto C. Durland, Kate A. Woodruff and Martin C. Lawrence settled upon and claimed as a homestead the northwest quarter of section 34, township 12 north, range 3 west, situated in Oklahoma county.
2. Kate A. Woodruff filed her homestead entry for said tract of land at a time not definitely shown in the record, but prior to May 1, 1889.
3. On May 8, 1889, Otto C. Durland instituted contest proceedings against the entry of Woodruff upon two grounds. (1) That said Woodruff was disqualified from entering as a homestead land in Oklahoma for the reason that she entered upon a portion of the lands in Oklahoma prior to noon of April 22, 1889, and *Page 35 subsequent to March 2, same year, and (2) that he, Durland, was the first legal settler upon such tract; he prosecuted his contest to effect and a decision was rendered in his favor both at the local land office and by the commissioner of the general land office at Washington, D.C., and at the time of her relinquishment of her homestead entry, April 29, 1893, her appeal was pending before the secretary of the interior. Immediately upon the filing of her relinquishment as aforesaid, Durland filed his homestead entry for the land; it appears that Durland did not follow up his settlement upon the land made April 22, 1889, and at the time of his homestead entry had only such an interest in the land as grew out of his contest alleging that Woodruff was disqualified from entering the land as a homestead.
4. Martin C. Lawrence instituted a contest against the entry of Woodruff and claimed prior settlement to that of Woodruff. The record does not disclose the nature and extent of the settlement, except that it appears that he was using a small tract of land, in extent about five acres, situated in the western portion of the tract, and separated from the main body of the same by a fence, which tract was so used until April 24, 1893.
5. That Samuel Sproat, appellant and plaintiff below, is the father of the two persons who executed the written leases from Woodruff heretofore mentioned; that said Sproat was upon and about the premises leased assisting and working for his sons from December 16, 1892, until the sons surrendered and cancelled the lease on April 25, 1893. On April 21, 1893, Sproat filed in the land office at Oklahoma City an affidavit of contest against the entry of Woodruff and Durland, alleging that both Woodruff and Durland were disqualified from entering the land as a homestead; that on the 24th day of April, 1893, Sproat purchased from Lawrence his improvements upon the land and on the same day went into possession of such improvements. On May 1, 1893, Sproat filed in the land office a contest against Durland for the land, and, as grounds of such contest, alleged that Durland was disqualified from entering the same by reason of having entered upon lands in Oklahoma *Page 36 subsequent to March 2, and prior to April 22, 1889, and further, that he, Sproat, was an actual settler upon said land prior to and at the same time Durland filed his homestead entry; that on April 28, 1893, Sproat began occupying all that portion of land except the tract heretofore mentioned as the twenty acres used for cultivation by Woodruff.
6. Immediately after the filing by Durland of his homestead entry, to-wit: April 29, 1893, Durland entered into possession of the house formerly occupied by Woodruff and began using all of the tract, except that formerly occupied by Lawrence, for pasturage and otherwise; Sproat claimed the right to the possession of all the tract, except the twenty acres referred to. Sproat drove Durland's stock off from the premises and Durland insisted upon his right to hold the same upon the land and to the control of all the tract except that formerly used by Lawrence.
7. Upon the hearing, the judge dissolved the temporary restraining order, previously made, and granted an order restraining Sproat from the use or occupancy of any of the land, except that portion previously used and occupied by Lawrence, and awarded possession of the same to Durland; the order so made to remain in operation until the final determination of the litigation between the parties concerning the title to the land, unless otherwise ordered by the court. It appears from the record that an attachment for the contempt of the foregoing order was issued against Sproat and that he was brought before the judge below to answer to such charge; that he was not punished for disobeying the order, because of his promise of obedience to the same.
The plaintiff below, Sproat, excepted to the order of the court and brings the case here for review.
ASSIGNMENT OF ERRORS. While numerous errors are assigned, those which bear upon the questions involved may be stated as follows:
1. Error in dissolving the temporary restraining order made on appellant's complaint, and refusing on the hearing of said cause to continue said order. *Page 37
2. In granting appellee an injunction and restraining order on his answer and cross-complaint on the pleadings and evidence in the case.
3. In giving to the injunction and restraining order the force and effect of a writ of possession.
4. In giving judgment against appellant for costs and in compelling appellant to remove his stock from the pasture described in his said complaint.
OPINION OF THE COURT. To fairly consider the first error assigned, it becomes essential to determine what possessory rights each party has in the land, by virtue of their settlement, contest and the homestead entry of Durland.
A conclusion upon these questions can only be reached by an examination of the Acts of Congress relating to contests and entries under the homestead laws of the United States and the decisions of the secretary of the interior in construing such laws.
We think that such laws and decisions must govern the status of the parties while the title to the lands remain in the government, because congress, having the full power to dispose of the public domain, has, by appropriate legislation, vested in the interior department all powers necessary to convey public lands until the title thereto passes from the government by patent Under the head of Homesteads, (p. 419, Revised Statutes of the United States, beginning at § 2289) will be found the law under which the title to the land in dispute must be obtained from the government, and it will appear that such law provides for filing an entry, and that such entry gives by plain implication of law a right of residence upon and occupation of the tract so entered. (See § 2291 supra). In fact, unless residence upon and cultivation be made of the land within six months from date of filing, the entryman cannot acquire title to the same. This law evidently intended to, and did, give to the *Page 38 entryman the exclusive right to the use of the land entered, and from the date of its adoption until Congress passed the Act of May 14, 1880, which will be further noticed hereafter, the only way by which a person could secure an interest in a tract of land, under the homestead law, was by filing his homestead entry therefor.
And the first person, in point of time, making homestead filing, had the right to the exclusive use of such land. The act of May 14, 1880, was passed for two purposes: (1) to secure to a successful contestant a reward for his services in aiding the government to expose fraud, by permitting him to enter the land if he prevailed in his contest, and, (2) to permit an inceptive right to be obtained, under the homestead law, other than by filing an entry for the land. This latter act was not intended to change the law relating to the use or occupancy of the land, except that an actual settler upon the land now has three months from the date of his settlement within which to file his homestead entry for such land, and his rights relate back to the date of his settlement upon land, and it follows that where a person has made an actual settlement upon land, and if, within three months therefrom, another files an entry thereon, the settler having the prior right may institute his contest within the time allowed to file his entry, and pending such contest occupy the land, but in such case he would not be permitted to occupy the whole of the tract, because the entryman would have equally as great an interest in the tract until the land department finally awards the land to the party entitled to the same. It will therefore be seen, by an examination of the statutes referred to, that a person claiming a legal settlement upon homestead land, and a right to occupancy, must base his claim upon either a filing for the same or upon a settlement made within three months prior to such filing. *Page 39 This view of the law is, we think, fully sustained by the decisions of the interior department, such decisions uniformly holding that a homestead entry segregates the land from settlement and that a person going upon the same, while a valid entry remains of record, is a mere trespasser.
See the opinion of Attorney-General McVeigh, found in the 1 L. D. 30; Oliver vs. Thomas, et al., 5 L. D. 286; Gudmanson,vs. Morgan, 5 L. D. 147, and the cases cited in those decisions, and Sturr vs. Beck, 133 U.S. 548.
It is suggested that Commager vs. Dicks, 1 Ok. 82, seems to establish a different rule. But an examination of that decision shows that each of the parties to that controversy were bonafide settlers upon the land, and that such settlements were made in accordance with the laws of congress above referred to.
Such being the law let us examine the facts relative to Sproat's alleged settlement, and determine whether or not Sproat became a settler upon the land in any manner known to the law: Kate A. Woodruff having filed her entry in April, 1889, and not relinquishing the same until April 29, 1893, any act of settlement made by Sproat, prior to her relinquishment, was the act of a mere trespasser and gave him no rights whatever. His purchase of the improvements of Lawrence, on April 24, 1893, could give him no settlement rights, because a settlement right cannot be transferred. It is a personal act and not the subject of sale.
Fox vs. The Southern Pacific Railroad Co., and cases there cited, 2 L. D. 558.
Pruitt vs. Chadburne, 3 L. D. 100.
Willis vs. Parker, 8 L. D. 623.
M. K. T. Ry. Co. vs. Beal, 10 L. D. 504.
Neither did the contest filed April 21, 1893, against both Woodruff and Durland initiate a settlement right *Page 40 to the land. As we have heretofore pointed out, such right must be based upon either a filing or settlement made within three months prior to an adverse filing. But it is contended that, because Sproat was actually upon the land as a settler, at the time Woodruff filed her relinquishment, that his right attached between the time of such relinquishment and the filing by Durland. This would be true if it were not for the fact that Durland was a contestant for the land and entitled, by virtue thereof, to a preference right of entry. Many cases may be found decided by the interior department wherein it is held that the rights of a settler upon government land attach at the instant the entry upon the land is cancelled, and as between parties upon land covered by an entry, it may be said, that the first settler in point of time will be permitted to enter such land. This doctrine, however, is predicated upon an entirely different state of facts than those presented in this case.
In Greer vs. Farrington, 4 L. D., 410, the following language is used:
"Conceding that while an entry stands uncancelled upon the record, settlers upon the land covered thereby acquire no rights as against the record entryman or the United States; yet as between such settlers, priority of settlement may be properly considered."
This rule has been adhered to in subsequent cases, but in the case referred to neither party was a contestant for a preference right of entry, and in discussing the question the honorable secretary states that neither party had so secured any right as a preference contestant, and, after a careful review of all the decisions of the interior department, we are of the opinion that nowhere will the doctrine be affirmed that a settlement made, and covered by an existing entry, confers any right whatever, where such entry is cancelled as a result of a contest for a preference *Page 41 right. If this were not true, the very purpose for which the law was passed, which gives to a successful contestant a preferred right of entry, would be defeated. The law intends that persons who go the trouble, and in many cases the vast expense of successfully contesting an entry, shall enjoy the fruits of their victory. All the decisions of the department are in harmony with this view.
Haskins vs. Nichols, 1 L. D. 145.
Nichold vs. Littler, 3 L. D. 224.
Ebbott vs. Schartzel, et al, 4 L. D. 587.
Hemsworth vs. Holland. 8 L. D. 400.
Paulson vs. Richardson, 8 L. D. 579.
It will be observed from an examination of the fact in this case that Durland filed his contest against the entry of Woodruff on May 8, 1889; that he not only claimed in such contest to be the first legal settler in point of time, but alleged that Woodruff was disqualified from making such entry, and while it may be true that he lost whatever of settlement right he had, because he failed to follow up such settlement, yet, as shown by the record, he did follow up his contest for a preferred right, and procured a favorable decision in both the local office and before the honorable commissioner of the general land office. It is true that the case was still undetermined, by reason of an appeal from the general land office to the honorable secretary of the interior, but that is immaterial. The relinquishment by Woodruff, pending such an appeal, must be presumed to have been the result of the contest.
McCall vs. Molnar, 2 L. D. 265.
Glaze vs. Bogardus, 2 L. D. 311.
Hay vs. Yager, et al, 10 L. D. 105.
While it is true that the presumption that the relinquishment was filed as a result of the contest may be overcome by proof, in some instances, yet, the party *Page 42 upon which such burden rests has no greater or higher interest in the land than a contestant for a preferred right.
From the foregoing it is plain that Sproat obtained no rights whatever as a settler upon the land, either by his contest on April 21, 1893, his purchase of the improvements of Lawrence on April 24, his alleged settlement on April 28 at a time the entry of Woodruff remained intact, nor could his settlement at the time such entry was cancelled avail him anything, because of the preferred right of Durland, by virtue of his prior contest. Sproat's subsequent contest against Durland, of May 1, can only be considered as having been commenced for a preference right, which will give him the occupancy of the land only upon its successful termination.
This view of the law is, we think, fully supported by the acts of congress, and the decisions of the the interior department, and is manifestly equitable to all persons seeking to acquire lands under the provision of the homestead law. Such being true, it must follow that the court below committed no error in dissolving the temporary restraing order, by him personally granted, because Sproat had, under the law, no right to the occupancy of the land and the restraining order was therefore improperly granted, and upon issue joined should have been dissolved.
The second allegation of error is not tenable. A court may undoubtedly make such an order in an injunction proceedings. We will do equity between the parties to the action. The appellant had brought the appellee into court. The answer and cross-complaint of defendant were as fully before the court as if the proceedings had been originally commenced by the appellee.
High on Injunctions, chap. 1, sec. 32.
In the third assignment of error it is also urged that *Page 43 the court erred in giving to the injunction and restraining order the force and effect of a writ of possession. The order of the court did operate to give Durland the use of land then in possession of Sproat, and to that extent had the same effect as a writ of possession. But, if the order was properly granted, the fact that it operated in the manner claimed would be immaterial. As a general rule it may be said that injunction is a preventive remedy and will only be used to prevent future injury, rather than to afford redress for wrongs already committed, and is, therefore, to be regarded more as a preventive than a remedial remedy. But while the jurisdiction of a court of equity by way of mandatory injunction is rarely exercised, it is, nevertheless, too well established to admit of a doubt.
High on Injunctions, §§ 2 and 478.
Corning vs. Troy Factory, 40 N.Y. 191.
Webb vs. Portland Man. Co., 3rd S.C. 190.
Webster vs. Coake, 23 Kans. 637.
Pom, Eq., Jur. Vol. 3, § 1359.
Cooke vs. Boynton, 135 Pa. 110.
Black Lick Co. vs. Saltsburg Gas Co., 139 Pa. 448.
And we entirely approve of the principle laid down inTucker vs. Carpenter, Hemp. 441, found in a note to § 41, of chapter 1.
High on Injunctions, where the court says:
"A writ of injunction may be said to be a process capable of more modification than any other in law; it is so malleable that it may be moulded to suit the various circumstances and occasions presented to a court of equity. It is an instrument in its hands capable of various applications, for the purpose of dispensing complete justice between the parties. It may be special, preliminary, temporary, or perpetual; and it may be dissolved, reviewed, continued, extended or contracted. In short it is adapted and used by courts of equity as a process for preventing wrong between and preserving the rights of the parties before them." *Page 44
It will be found upon examination that the English authorities are almost uniform in supporting the doctrine of mandatory injunctions, and that where an application for such injunction is denied, such refusal is based upon the fact that an adequate remedy may be found in the law; and while in this country the courts, generally speaking, refuse mandatory injunctions, yet where it clearly appears that no relief can be had under the law, we know of no reason, sound in principle, which will justify a court in withholding its aid by mandatory injunction, in favor of a person who seeks protection from a trespasser, or to be restored to possession of property which is withheld from him wrongfully.
In the case of consideration, the question of the jurisdiction of the court to grant restraining orders, pending the litigation in the land department, is not raised; in fact, 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 on 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 courts, in dealing with such matters, to exercise their 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 the proper party the possession of the land upon which the trespass is committed.
A mere assertion of right is insufficient to deprive the rightful occupant of the quiet use of the land, and, as between settlers upon the public domain, the courts should inquire into the status of the lands far enough *Page 45 to determine whether or not a person asserting a claim of possession has a color of right to such possession under the homestead law, and if it be found that he is a mere trespasser, or that the law will not, under any fair construction, warrant his claim, it is the clear duty of the courts to issue a mandatory order of injunction, restraining him from the further unlawful occupancy. This question is one of vital importance in Oklahoma.
All our lands are entered, and title procured therefor, under the homestead laws of the United States. The questions arising out of adverse possession, as between homestead claimants, daily confront our courts. 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. Such a state of affairs is to be avoided and the courts should not hesitate to invoke the powers inherent in them and lend their aid, in every way possible, in aid of justice by preventing encroachments upon the possessory rights of settlers, or by equitably adjusting their differences.
All Justices concurring, except