52 P. 917 | Okla. | 1898
Opinion of the court by This case comes here on appeal from Kay county to reverse the order of the district court in granting an injunction prohibiting the appellant from further interfering with the possession of the appellee in a tract of land covered by the homestead entry of the latter, alleging insolvency upon the part of appellee. Briefly stated, the facts are as follows:
On October 13, 1893, Hollon filed his homestead entry for a tract of land situated in Kay county, and afterwards Potts filed an affidavit of contest against Hollon upon the one ground of disqualification to enter the land by reason of Hollon's having entered the Cherokee outlet from the south line of the Chillocco reservation, three and one-half miles south of the Kansas line. This contest was, by the local land office, and by the commissioner of the general land office, decided adversely to Potts. After the contest had been so decided in the local land office, and while the same was pending upon appeal before the commissioner of the general land office, Potts filed an amended contest affidavit charging generally *698 that Hollon was disqualified to enter the land by reason of having entered and occupied portions of the Cherokee outlet subsequently to August 19, 1893, and prior to 12 o'clock, noon, of September 16, 1893. At the time the original contest was being considered by the commissioner of the general land office the amended contest was not before that tribunal, and upon such original contest proceedings the case was, by the commissioner of the general land office, entirely closed, and the contest dismissed. A motion for review was filed before the commissioner of the general land office, and in such motion the fact was shown that prior to the date of the dismissal Potts had filed his amended contest affidavit. The only action upon the amended affidavit taken, was simply to refer it to the local land office for their consideration.
It is claimed by the appellant that the court below erred in granting the injunction while the contest upon the amended affidavit was pending, and further, that Hollon had slept upon his rights by permitting Potts to remain upon the land for a period of about three years before commencing the action to remove him, and in support of this contention is cited,Proctor v. Stuart,
As to the second proposition advanced: This case presents an entirely different aspect from that before us in Stuart v.Proctor, supra. In the case under consideration the original contest affidavit by Potts was decided before *699 the action to remove was instituted, and it is sought by filing a new contest and styling it an amendment to the original contest, to retain possession. There are very many grounds of disqualification which may be alleged against a homestead entryman, and if a party were permitted to retain possession of his adversary's land during the life time of as many contests as he might bring based upon the disqualification of an entryman, the children of the homestead settler would hardly live long enough to dispossess such a contestant.
We find no error in the decision, and the judgment of the lower court is affirmed.
Bierer, J., having presided in the court below, not sitting; Tarsney, J., concurring; McAtee, J., and Keaton, J., dissenting.
