Dierks v. McDonald , 148 Okla. 215 ( 1931 )

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 P. 883, and followed in Take v. Miller, 139 Okla. 115, 281 P. 576. On the authority of those cases, the judgment of the trial court is affirmed.

LESTER, C. J., CLARK, V. C. J., and RILEY, HEFNER, CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur.