Wordchoff v. Nepper

170 N.W. 657, 41 S.D. 396, 1919 S.D. LEXIS 15

• Court: South Dakota Supreme Court
• Decided: February 11, 1919
• Docket: File No. 4403
• Status: Published

Opinion

MdCO'Y, J.

In the fall of 1916, the respondent Julia Nepper, an .Indian allottee, verbally leased her alloted land to appellant for the year commencing March 1, 1917, and ending March 1, 1918. The said lease was not executed on a government form, nor approved by the superintendent of Indian affairs. Appellant went Into possession under said verbal lease, and occupied said; land ■during said year. During the month of March, 1918, the appellant still occupying said land, the said Julia Nepper and her husband undertook to take possession of and move into and occupy the buildings upon said leased premises. Appellant objected to her so taking possession, claiming that he had verbally leased said land for another year ending March 1, 1919, but which renewal of lease was denied -by respondent. At the time respondent so attempted to take possession much harsh language was used between the parties: Thereafter appellant commenced an action to restrain the respondent and her husband from interfering with appellant’s possession of said premises, and procured an order requiring the respondents to show cause why they should not be restrained during the pendency of the trial from in any manner going upon the said premises, and which order-to show cause-also contained a temporary injunction restraining respondents from in any manner going upon the said premises until the further order of the court. "Upon the hearing of the' order to show cause, the court -denied the application for injunction pending suit, and- also dissolved the temporary restraining order, from which rulings of the court appeal has been taken.

[1] Appellant now assigns as error the said rulings. The ■specific contention of appellant is that the respondent could not lawfully by force • or threats intimidate appellant into giving up possession of said land; that respondent’s remedy- was by an action in forcible entry and detainer. We are of the view, however, that if, upon the showing made, it had appeared that appellant was rightfully in possession of said premises under a clear legal right, such as the owner of said property, or one having a valid lease thereon, that' then, and in that case, appellant might have been protected in his possession by the injunction of the court, as against one who was a. wrongful trespasser; but such is not ■shown to be the circumstances of this case.

[2] It is clear from1 the showing made that respondent Julia Nepper, was the rightful allottee under a United States allotment patent, and that, while she had the right to lease said lands, she •could only make a valid lease by complying with- the rules and regulations of the Indian Department which provide that all such leases must be in writing on forms prescribed by the Indian Department, and also must be approved by the superintendent of Indián affairs-'before such lease can have any validity at all. Beck v. Flournoy Co., 65 Fed. 30, 12 C. C. A. 497. We are of theopiriion, therefore,' that appellant never' at any time -had any legal right to the possession of' said premises as'against respondents'.. A plaintiff who is' owner and has the right of possession usüally will -be entitled to injunction to restrain a trespasser without'right,, and so one who has naked possession only may be entitled to injunction as against a wrong-doer without right; but one in possession who is himself wholly • without right to possession cannot maintáin injunction against the rightful owner' who seeks to reenter. Jbjice on Injunction; 998 and 1001; McGee v. Smith, N. J. Eq. 462. We are of the opinion, therefore, that'appellant, being without right to possession, and against the rightful owner, was not entitled to the injunction sought in this case.

Finding no error in the record, the judgment' appealed front-is affirmed.