Swinney v. Kelley , 5 Indian Terr. 12 ( 1903 )

Gill, C. J.

Specifications of error with slight difference in verbiage follow seriatim the grounds for motion for new trial filed in said case. The only one of the specifications of error presented to the court by appellants and urged to the court’s attention are found in the fifth specification of error: “That the court erred in not allowing plaintiffs damages as found by tbe master,” and in the sixth specification: “The court erred in refusing to impanel the jury at the plaintiffs' request, and in refusing to grant a writ of inquiry to assess plaintiffs’ damages for the year 1900;” and the seventh: “That'the court erred in determining the value of the rents for the year 1900;” and in the ninth specification of error: “That the court erred in not entering the judgment in the alternative affording plaintiffs the privilege of paying the value of the improvements in excess of the rents as found by the court, and then granting plaintiffs judgment for the rents and for the writ of inquiry to assess damages for the year 1900.” But the judgment of the court shows that the master’s report was approved in part and overruled in part. The question before the court, under the pleadings and facts in this case, was the method in which to determine the value of the improvements on the place, and whether or not plaintiffs had held possession of the place under their written contract a sufficient length of time to recompense them for their improvement. An examination of Mansf. Dig. §§ 3362, 3363 (Ind. Ter. St. 1899, §§ 2296, 2297), shows that either party to the action have the right to demand a jury for the purpose of the ascertainment of the main issue in the cause, and also of the damage. And section 3 of the Curtis bill or act of June 28, 1898, c. 517, 30 Stat. 496 (Ind. Ter. St. 1899, c. 3a), provides that where a party is claiming Indian lands under such contract as was pleaded and admitted in this case, trial of the questions involved herein may be had to the court or jury. At the time the court overruled the demurrer to the amended complaint of plaintiffs and ordered the case transferred to the equity docket and referred to the master in chancery, and that it be transferred to the court at Ardmore, the defendant excepted; and when the master made his report the plaintiff demanded that the question of his damage should be tried to a jury, and the court refused such request. This ease, on the record, is very different frbm a case where both parties, without objection or exception, submit a cause to a master in chancery, and such action is allowed by the court. It might be held properly, under such latter conditions, that the parties have waived their rights to a jury trial by reason of such voluntary submission; but in the case at bar plaintiff demanded what was his right — that the damages as to the year 1900 should be ascertained by a jury — and failure to comply with such demand, we are of opinion, is error. Exceptions to such refusal being duly taken, the court proceeded upon the evidence as taken by the master, and overruled the demand of the plaintiffs for a jury to try said case, and entered up judgment thereon. This, in our opinion, the court was without authority to do. The action of forcible entry and detainer is a statutory and legal action; and while the judgment of the court ,in view of the evidence, is probably as fair a solution of questions involved in the case at bar as can ever be reached, there is no legal process whereby the action of forcible entry and detainer can be transferred from the law to the equity side, referred to a master, testimony taken, and the court sit in judgment upon such testimony and award damages. The action of forcible entry and detainer, one or both, is to be tried as a legal action in the manner pointed out by the statute. Section 3 of the Cúr.tis act (Act June 28, 1898, c. 517, 30 Stat. 495; Ind. Ter. St. 1899, c. 3a) provides as follows: “Provided always, that any person, being a non-citizen in possession of lands, holding the possession thereof under an agreement lease or improvement, contract with either of said nations or tribes or any citizen thereof, executed prior to January first, eighteen hundred and ninety-eight, may, as to lands not exceeding in amount one hundred and sixty acres, in defense of any action for the possession of said lands show that he is and has been in peaceable possession of such lands, and that he has, while in such possession, made lasting and valuable improvements thereon, and that he has not enjoyed the possession thereof a sufficient length of time to compensate him for such improvements. Thereupon the court or jury trying said cause shall determine the fair and reasonable rental value of such lands for the time the same shall have been occupied by such person, and if the improvements exceed in value the amount of rents with which such person should be charged the court, in its judgment, shall specify such time as will, in the opinion of the court, compensate such person for the balance due, and award him possession for such time unless the amount be paid by claimant within such reasonable time as the court shall specify. If the finding be that the amount of rents exceed the value of the improvements,judgment shall be rendered against the defendant for such sum, for which execution may issue.” Section 3 of the Curtis act is an addenda to the statute of forcible entry and detainer, and provides for a condition of affairs peculiar to rental relations in the Indian Territory. But in no sense does said action change the legal aspects of the action to recover possession of property between landlord and tenant. In our opinion, this decision should be reversed, the cause remanded, with directions to the trial court to set aside the reference and proceed with this case as a law case, to be tried to the court or jury in manner as the law provides.

The court below, in its judgment, aswertained the value of the rents for 1900 to be $250, this being in accordance with the contract of rental. We are of opinion that Act June 28, 1898, c. 517, 30 Stat. 495 (Ind. Ter. St. 1899, c. 3a), intended that all contracts of lease should expire absolutely on January 1, 1900, except as in this case, where the parties claimed under an improvement contract or lease; in which case, if he has not enjoyed possession of the premises for sufficient length of time to compensate him for such improvements, to be" ascertained by a court or jury, he is allowed to continue in possession thereof at the fair and reasonable rental value of such lands until he shall be fully compensated. Under section 3 the rental value of tbe lands are not the contract rents stipulated, but a fair and reasonable rental value, to be ascertained; and we think it was error on the part of the court to say that the rental values of the lands for 1900 should be the stipulated sum mentioned in the contract. We think that the court was correct in its conclusion that the stipulated sum mentioned in the rental contract should prevail up to 1900, but thereafter the values became, not the stipulated contract sum, but whatever was fair and reasonable for the use and occupation of the premises in controversy until compensation should be had.

The judgment of the lower court is reversed, and cause is remanded.

Clayton and Raymond, JJ., concur.