Dierks v. McDonald

Supreme Court of Oklahoma

Dierks v. McDonald

1931 OK 151, 298 P. 296, 148 Okla. 215, 1931 Okla. LEXIS 853

CourtSupreme Court of Oklahoma

DecidedApril 21, 1931

Docket21200

StatusPublished

Cited by8 cases

This text of 1931 OK 151 (Dierks v. McDonald) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dierks v. McDonald, 1931 OK 151, 298 P. 296, 148 Okla. 215, 1931 Okla. LEXIS 853 (Okla. 1931).

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Opinion

ANDREWS, J.

The plaintiff in error, plaintiff in the trial court, appealed to this court from an order of the district court of McCurtain county, dissolving a temporary injunction against the defendant in error, defendant in the trial court. The action was 'brought to enjoin the cutting and removing of standing timber on a tract of land. The land was the homestead allotment of Chas. Noah, a full-blood Choctaw Indian who died intestate in 1912, leaving surviving him a widow and two children born subsequent to March 4, 1906. Neither the widow nor the children were parties to the action. They were all alive. The plaintiff claimed under a deed from the widow approved by the county court and the defendant claimed under a timber conveyance from her. The restrictions had not been removed by the Secretary of the Interior.

There is but one question before the court and that 'is whether or not the plaintiff had such interest in the real estate as would authorize him to maintain such an action. If he had no interest in the land, he could not enjoin a trespass thereon:

In our opinion the issue here is determined by the application of the rule announced by this court in Grisso v. Milsey, 104 Okla. 173, 230 Pac. 883, and followed in Take v. Miller, 139 Okla. 115, 281 Pac. 576. On the authority of those cases, the judgment of the trial court is affirmed.

LESTER, C. J., CLARK, Y. C. J., and RILEY, HEFNER, CULLISON, SWIN-DALL, McNEILL, and KORNEGAY, JJ., concur.

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ANDREWS, J.

The plaintiff in error, plaintiff in the trial court, appealed to this court from an order of the district court of McCurtain county, dissolving a temporary injunction against the defendant in error, defendant in the trial court. The action was 'brought to enjoin the cutting and removing of standing timber on a tract of land. The land was the homestead allotment of Chas. Noah, a full-blood Choctaw Indian who died intestate in 1912, leaving surviving him a widow and two children born subsequent to March 4, 1906. Neither the widow nor the children were parties to the action. They were all alive. The plaintiff claimed under a deed from the widow approved by the county court and the defendant claimed under a timber conveyance from her. The restrictions had not been removed by the Secretary of the Interior.

There is but one question before the court and that 'is whether or not the plaintiff had such interest in the real estate as would authorize him to maintain such an action. If he had no interest in the land, he could not enjoin a trespass thereon:

In our opinion the issue here is determined by the application of the rule announced by this court in Grisso v. Milsey, 104 Okla. 173, 230 Pac. 883, and followed in Take v. Miller, 139 Okla. 115, 281 Pac. 576. On the authority of those cases, the judgment of the trial court is affirmed.

LESTER, C. J., CLARK, Y. C. J., and RILEY, HEFNER, CULLISON, SWIN-DALL, McNEILL, and KORNEGAY, JJ., concur.

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Bluebook (online)

1931 OK 151, 298 P. 296, 148 Okla. 215, 1931 Okla. LEXIS 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dierks-v-mcdonald-okla-1931.

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