Brennan v. Shanks , 24 Okla. 563 ( 1909 )

The only question involved relative to the lot in controversy is the right of possession thereto. The lot is a part of the townsite of Bixby, which was laid off in accordance with the provisions of the Creek agreement of May 23, 1902. The defendant in error made application to the Creek townsite commission to have said lot scheduled and patented to him by virtue of his improvements thereon. At the same time the plaintiffs in error made like application to said commission, and at that time said lot was scheduled as "contested." The contest over said lot was tried by the Department of the Interior, and on May 7, 1907, a final decision rendered in favor of Taylor Shanks, the defendant in error, against the plaintiffs in error. The defendant in error has made all payments on said lot to the United States Indian agent in accordance with the regulation of the Interior Department and the provisions of the Creek treaty.

The jurisdiction of the Interior Department over the allotment of the Indian lands, and the segregation of townsites and the laying out and platting the same, and determining to whom the lots should be scheduled, is exclusive, subject to the right, after the title has been divestedout of the Indian Tribe, to have same reviewed in a proper action by the courts.Wallace v. Adams, 143 Fed. 721, 74 Cow. C. A. 540; Leak v.Joslin, 20 Okla. (1 State) 200, 94 P. 518; United States etal. v. Citizens' Trading Co., 19 Okla. 585, 93 P. 448.

In the case of Brown v. Hartshorn, 12 Okla. 123,69 P. 1049, the court said:

"The only issue the court could determine in this case was whether the plaintiff Hartshorn, was entitled to the possession of the land in controversy at the time of bringing his action, and whether the defendant, Brown, forcibly kept him out of possession. It was admitted that Hartshorn had the homestead entry, that the Land Department had finally disposed of the contest before its tribunals, and that Brown was forcibly withholding from Hartshorn the possession of about five acres of the tract in dispute. Under these facts we think the court committed no error in rendering judgment of restitution. This court has repeatedly held that where two parties have been claimants to a tract of public land, and the adverse claims have been finally disposed of in the Land Department, and the successful claimant has been permitted to make homestead entry, such entryman then becomes entitled to the undisturbed possession of the tract as against the unsuccessful claimant, and such unsuccessful claimant, by refusing to vacate the land, and continuing to occupy the same, becomes a trespasser, and his possession is wrongful, and the courts will give effect to the decisions of the Land Department, so long as title is in the United States. Woodruff v. Wallace, 3 Okla. 355,41 P. 357; Reaves v. Oliver, 3 Okla. 62; 41 P. 353; Barnes v.Newton, 5 Okla. 428, 48 P. 190, 49 P. 1074; Cox v. Garrett,7 Okla. 375, 54 P. 546; Calhoun v. McCornack, 7 Okla. 347,54 P. 493; Glover v. Swartz, 8 Okla. 642, 58 P. 943; McDonald v. Brady, 9 Okla. 660, 60 P. 509;Barnett v. Ruyle, 9 Okla. 635, 60 P. 243. We see no reason why one who has been determined by the proper tribunal rightfully entitled to the possession of a tract of public land should be forcibly kept, out of possession by one who proposes at some future time to wage a suit against him to determine the correctness of such determination. Forcible detainer was the proper remedy in this action to determine the right to immediate possession. Nothing else was involved, and no other question could be determined. The answer and the evidence offered in support of the answer attempted to put in issue and have determined the right to the title, which could not be done in a purely possessory action."

In the case of McQuiston v. Walton, 12 Okla. 131,69 P. 1048, the court said:

"The defendant below, McQuiston, admits that he and plaintiff were both claimants before the Land Department for the same tract of land, and that their claims have been finally determined in the Land Department in favor of Walton, and that the title is yet in the United States; but he alleges that the officers of the Land Department misapplied the land, and that he is entitled to acquire title to the land, and intends bringing his action in a court of equity to declare the patentee a trustee for him, and establish a resulting trust as soon as Walton shall make final proof and acquire the legal title. The question of title cannot be tried in this action, nor can the courts deal with the question of title as between adverse claimants so long as the fee rests in the United States. Under the homestead laws of the United States, the homestead entryman is entitled to the exclusive possession of the land as against a claimant whose rights have been adversely and finally determined by the officers of the Land Department. It is the duty of the courts to give effect to the decisions of the officers of the Land Department of the United States, and protect the possessory rights of those who have been determined to be entitled to the same. If the laws works a hardship or results in a loss of the prospective rights of any claimant, then such condition is a proper subject for legislation, and not for judicial cognizance."

In the case at bar the contest rights to such land, as between the claimants, have been finally determined by the Land Department, rather the Department of the Interior, and it is the duty of the courts to protect this possession.

The plaintiffs in error insist that the declaration of the bill of particulars of the defendant in error, which declares:

"That he is the owner of and entitled to the possession of lot 2, in block No. 15, in the town of Bixby, and the one-room residence thereon; that prior to November 25, 1907, the defendants made an unlawful and forcible entry upon said premises and detained the possession thereof from the plaintiff unlawfully and by force of arms; that on the 25th day of November, 1907, notice was served on said defendants to vacate," etc. —

is such a variance from the facts as proved that the plaintiff for that reason was not entitled to prevail in the nisi prius court. But the record recites that:

"It is hereby agreed by and between the parties in open court that the plaintiff in this case is entitled to recover, unless the facts stated in Exhibit A (which are set out in the statement of facts) constitute a defense. These facts defendant offers to prove as a defense, and plaintiff objects for the reason that same are irrelevant and immaterial and do not constitute a defense, and it is agreed that, if the court holds that these facts constitute a defense, then they are to be considered as proven, and the defendants entitled to recover, and that there is no objection as to the form or wording in which Exhibit A is drawn, or in the form in which the facts stated therein are tendered as evidence, that, if any fact stated is irrelevant or immaterial, it shall not be held to preclude the consideration by the court of so much of the facts therein stated as the court shall find relevant and material, and the court shall note what parts, if any, of such statement, are not considered by the court in making its findings of fact and conclusions of law in this case, and that the defendants except to the action of the court in excluding each and every part of said statement. * * *"

It seems by this agreement that plaintiffs in error are precluded from raising any objection to any variance between the allegata and probata.

The Supreme Court of the territory of Oklahoma has uniformly held that where two parties have been claimants to a tract of public land, and their claims have been finally disposed of in the Land Department, and the successful claimant has been permitted to make homestead entry, such entryman then and there becomes entitled to the undisturbed possession of the tract as against the unsuccessful contestant and that unsuccessful contestant, by refusing to vacate the land and continuing to occupy the same, becomes a trespasser, and his possession is wrongful, and the courts will give effect to the decision of the Land Department so long as the title is in the United States. Woodruff v. Wallace, 3 Okla. 355, 41 P. 357; Reavesv. Oliver, 3 Okla. 62, 41 P. 353; Barnes v. Newton,5 Okla. 428, 48 P. 190; Cox v. Garrett, 7 Okla. 375, 54 P. 546;Calhoun v. McCornack, 7 Okla. 347, 54 P. 493; Glover v.Swartz, 8 Okla. 642, 58 P. 943; McDonald v. Brady,9 Okla. 660, 60 P. 509; Barnett v. Ruyle, 9 Okla. 635, 60 P. 243;Cope v. Braden, 11 Okla. 291, 67 P. 476; Brown v. Hartshorn,12 Okla. 123, 69 P. 1049; McQuiston v. Walton,12 Okla. 131, 69 P. 1048; Bilyeu et ux. v. Pilcher, 16 Okla. 228.83 P. 546.

Such an action clearly comes under the provisions of section 5087, Wilson's Rev. Ann. St. 1903 (chapter 67, art. 13, § 160, Code Civ. Proc.), wherein it is provided that forcible detainer may be maintained by the owner of premises against a settler or occupier thereof without color of title; the complainant having the right of possession. In this case, by virtue of the final decision of the Secretary of the Interior, the defendant in error, Shanks, was the owner of said lot and entitled to the possession thereof against the plaintiffs in error, who would be termed such "settlers" or "occupiers," unless they occupied same under color of title. They insist that they have a right in a court of equity to have reviewed the decision of the Secretary of the Interior, whereby a misconstruction of the law is applied to the facts, and he awarded the title to the lots to the wrong party; but this contention will not avail in a forcible detainer action. The right to prosecute such a claim in a court of equity does not constitute color of title.

In the case of Dysart et al. v. Enslow, 7 Okla. 386, 54 P. 550, it was held: That an action of forcible entry and detainer could not involve the exercise of equitable jurisdiction; that where the defendant pleads a special defense in his answer, alleging that the plaintiff's right of possession is based upon a certain instrument, denominated a "trust deed," executed by the defendant to the plaintiff, and as a defense to such action the defendant avers that such instrument is void because the plaintiff had made certain false and fraudulent representations in procuring said deed, the equitable powers and jurisdiction of the court cannot be invoked for the purpose of determining the title to the land in controversy, or to annul or cancel the so-called trust deed; and that testimony offered by the defendant to show that such deed was obtained by means of fraudulent representations was not competent in such an action.

Also, in the case of Cope v. Braden, 11 Okla. 291,67 P. 476, it is said:

"This court has repeatedly held that an action for forcible entry and detainer is purely a proceeding at law, and does not and cannot involve the exercise of equitable jurisdiction. The right of possession is the only question involved."

Such is also the uniform holding of the courts of Nebraska and Ohio, which states have the same statutes as Oklahoma.Railroad Co. v. Skupa, 16 Neb. 341, 20 N.W. 393; Bowers v.Pomeroy et al., 21 Ohio St. 184; Brennan v. Cist, 9 Ohio S. C. P. Dec. 18, 6 Ohio N.P. 1; Schmidt v. Schmidt, 13 Ohio S. . C. P. Dec. 666; 10 Ohio N.P. 177; Worden v. Klag, 6 Or. C. D. 359, 13 Ohio Cir. Ct. R. 627.

In the case of Black v. Jackson, 177 U.S. 362, 20 Sup. Ct. 653, 44 L. Ed. 806 (Black v. Jackson, 6 Okla. 751, 52 P. 406), the Supreme Court of the United States said:

"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 in forcible retainer, and thus obtain possession without resorting to the extraordinary remedies used by courts of equity. According to the decision 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.' "

Failing to find any reversible error in the record, the judgment of the lower court is affirmed.

Dunn, Hayes, and Turner, JJ., concur; Kane, C. J., not participating.