
    Alfred D. Harris v. Kyle McClung
    (Filed Feb. 8, 1901.)
    Mandatory Injunction, Will Not Lib, When — Public Lana, (Jontest in Land Department. An action of mandatory injunction cannot be maintained by one to dispossess an adverse claimant for a tract of land on which both are residing, and for which eiach is contesting in the land department, on the ground of prior settlement, when the plaintiff has at the time 80 acres of such, land in hs uninterrupted possession. Under such circumstances, he must wait until the case is finally closed in the land department, and even then, if successful, he must bring an action at law, where the defendant can have a trial by jury.
    (Syllabus by the Court.)
    
      Error from the District Gourt of Kay County; before Bay-ard T. Hamer, District Judge.
    
    
      Ransom cO Bailey and J. H. King, for plaintiff in error.
    
      Morgan & Pancoast, for defendant in error.
   Opinion of the court by

Burwell, J.:

This is an action of mandatory injunction commenced by Kyle McClung against Alfred D. Harris, to dispossess the defendant of 80 acres of the northeast quarter of sec. 30, township 26 north, range 1 E. I. M., in Kay county. One Walter Fisher made a homestead filing at the time the land was opened up to settlement, and plaintiff and defendant each filed a contest against the other, as well as against the entryman, on the ground of prior settlement. Fisher relinquished his filing back to the government, leaving the plaintiff and defendant to contest for the land. A hearing was had before the local land office; an. appeal was taken to the commissioner of the general land office, and from there to the secretary of the interior, and McClung was awarded the land by each tribunal. A motion for review was filed by Harris, and overruled by the secretary. Whereupon McClung commence this action, and the court granted a temporary injunction, awarding him a part of the land then in the possession of Harris. After this order was made by the trial- court, Harris was granted a rehearing by the secretary of the interior. On October 21,1898, the trial court, both parties being present, modified the first order made, by confining Harris to one acre of land. In other words, the trial court, in the two orders, took from Harris 79 acres of land and gave it to McClung prior to the time that the case w'as closed by the' secretary of the interior.

In the case of Black v. Jackson, 177 U. S. 349, a case which was appealed from the supreme court of this Territory to the supreme court of the United States, the rule is announced that mandatory injunction will not lie by one contestant after he has been awarded the land by the secretary of the interior, and who is in possession of a sufficient portion of the land on which he can maintain his residence and comply with the law as to improvements, to remove the other claimants from the same: and under that authority this case must be reversed.

The plaintiff had possession of 80 acres of the land at the time he began this action; therefore he will be required to bring his suit in a court of law where the defendant can have a trial by jury. We deem it fair to the trial judge to say that, in making the orders appealed from he followed the former decisions of this court, but as tbe supreme court of tbe United States bas spoken upon tbis subject we are bound by its conclusions. We, therefore, bold that mandatory injunction cannot be maintained by one who is in possession of a sufficient portion of a tract of land o.n which be can reside and comply with tbe homestead law as to residence and improvements, either during tbe pendency of tbe contest or after it bas finally terminated in his favor, to remove an unsuccessful contestant or entryman (tbe issue involved in •the contest being prior settlement) from the remainder of such land.

Tbe orders made by tbe trial court, taking from tbe defendant 79 acres of tbe land in' controversy, are hereby reversed, vacated and set aside at tbe cost of tbe appel-lee, and each of tbe parties restored to tbe possession of tbe land occupied by him at tbe commencement of tbis action, and tbis case is remanded with direction that tbe district court dismiss the same at tbe cost of McClung, without prejudice to tbe respective rights of tbe parties in an action at law.

The rule announced in tbe former decisions of tbis court upon tbe subject of mandatory injunction is hereby modified to conform with tbe views herein expressed.

Hainer, J., having presided in the court below, not sitting; all of tbe other Justices concurring.  