The opinion
Dissenting opinion by
Bierer, J.:
In my view of the law, this is another extension by this court of the proceeding by injunction to a class of cases in which neither the law or equity ever contemplated it should be invoked, and as each encroachment is made by this so-called equity jurisdiction upon legal remedies, I feel it my duty to dissent from the action taken.
I am not conyinced either by the argument made, or the authorities citéd, by the court, that injunction is a proper remedy by which to dispossess one who is in the peaceable, and hitherto, rightful, possession of land. I have never questioned the right of one homestead occupant to employ the remedy by injunction to restrain any interference with his possession, either on the part of another claimant or any other person, but I have denied that the homestead entry vested in the entryman the right to enjoin from the land covered thereby, one who, by any form of contest, was claim *380 ing the better right to acquire the government title to the land; and. particularly did I deny this in a case where the contestant was claiming settlement prior to the contested, entry, and where he had also alleged by affidavit, duly corroborated, that the entryman had committed a violation of the law, the penalty for which was prescribed to be that no violator thereof “shall be-permitted to enter upon and occupy the same, and no person violating this provision shall be permitted to enter any of said lands, or acquire any light thereto,” (Sproat v. Durland, 2 Okla. Rep. 24 ; 35 Pac. 886 ), and I now deny that a homestead entry, or any other form or degree of claim to land either inchoate, legal, or equitable, entitles the holder to super-cede the clear legal remedies and convert the order of injunction into a writ of ouster by which a person, theretofore in the peaceable and rightful possession of land, may be ejected from the same without any other form of trial than an address to the broad discretionary power of a judge of a court of equit3T. The right of Willie A. Wallace to invoke the aid of the strong arm of a court of equity to prevent Luman O. Woodruff from interfering with him in his right to peaceably settle on, reside upon, and cultivate the land covered by his homestead entry, (Peckham v. Faught, 2 Okla. Rep. 173 ; 37 Pac. 1085 ,) does not give him the right to use the same strong arm to throw Woodruff from his home, eject him from his cultivation, and 'tear down his improvements. Before this latter relief can be had Woodruff is entitled to a .trial in a legal proceeding, and before a jury of his countrymen, and this right is not taken away by any adjudication of any land tribunal. It existed before land tribunals were heard of, and will likely exist after they are forgotten, and I am opposed to this court being the first to take it away. Possession and right of possession are not synonomous, either in language or law, and it is a *381 mistaken understanding of our procedure to hold that the remedy for the protection of the former against intrusion is the appropriate relief for the enforcement of the latter against one in actual possession.
In the cases cited, not only had the parties restrained not been in the prior rightful possession of the premises, as Woodruff is admitted to have been, but in none of these cases were the parties enjoined from their actual possession of the land, consisting either of residence or cultivation, but the restraint was made against acts which interfered with the occupancy of the complainant, and did not disturb the actual possession of the person enjoined, and the paragraphs quoted from the text writers are concerning entirely different principles than those which must govern a case like the one at bar. Consequently, I cannot regard the authorities referred to as giving any weight to the decision of the court. If any one of the Kansas decisions cited by the court- was in point, or justified the conclusion reached, I would be willing to admit that the procedure had the Code to support it, as our legislature has adopted the Kansas practice as an entirety, both for the district and justice courts, and I am a firm adherent to the doctrine that the construction given before its adoption to an adopted statute is as much a part of the law as if it were written in the sections. (Cathcart v. Robinson, 5 Peters, 364 .) And if any-of the Kansas decisions approved the procedure of ejecting a man from his home and his fields because he had lost his property therein, by an injunctional order, I would concede that Wallace had adopted his proper remedy, under the language of the statute, but I would still doubt the constitutional power of the legislature to enact such a law.
A brief examination of the Kansas cases cited will, I think, disclose the correctness of my statement that they are no authority whatever for the conclusion of *382 the court in this case. The case of Walker v. Armstrong, 2 Kan. 198 , was a proceeding brought to restrain the defendants from encroaching- upon a ferry franchise claimed by the plaintiff under an act of the legislature of the territory of Kansas, and the court, by Mr. Chief Justice Cobb, said:
‘ ‘An injunction is the appropriate remedy to protect a party in the enjoyment of a ferry franchise against continuous encroachments. Sush continuous encroachments constitute a private nuisance which courts of equity will abate by injunction.”
That injunction is an appropriate remedy to abate a nuisance, has long been the undisputed law; but this is the first time that I have ever heard it claimed that an authority which authorized an in junctional proceeding to abate a private nuisance could be held to sustain a proceeding to eject a man from the possession of real estate, 'and which possession had, prior thereto, been rightful. If the remedy by injunction must be made rightful by analogy from such a case as this, it certainly has little to support it as authority.
Webster v. Cooke, 23 Kan, 637, is a case where the plaintiff was in the lawful possession of certain Indian lands to which he was making an effort to acquire title. The defendant took forcible possession of plaintiff’s house and was preventing plaintiff from pasturing his sheep upon the land — was driving them and dogging them therefrom — and the plaintiff showed that great injury would result to his flock if they were not permitted to graze upon the land, and he asked an injunction to prevent the defendant from driving plaintiff’s sheep from the land. The plaintiff did not ask to have tbe>defendant ejected from the house, admitting that even though the defendant was a ti-espasser, and had never had any. lawful possession of any part of the presmises, but had taken possession of the house through force, that the plaintiff could not re *383 cover his actual possession in this way, nor eject the defendant from the actual possession. The gist of the case is reposed in one sentence of the opinion: “The lawful possession of G-eorge Webster gave to the plaintiff, under the arrangement pleaded, the right to graze his flocks on the land, and defendant had no authority to interfere.”
The case of Downing v. Reeves, 24 Kan. 167 , is one where both parties each had partial possession of certain improvements upon a tract of Kaw Indian trust lands, and the order of the judge was that “each party should be enjoined from interfering with the improvements made by the other.” This doctrine has so long been the recognized law of the entire country that it is manifestly authority upon the question which it decides, but it gives no color of approval for the case at bar.
The case of Long v. Kasebeer, 28 Kan. 226 , discloses a transaction where the plaintiff was the owner and in the actual possession of a quarter section of land, and he brought 'his proceeding by injunction to restrain the defendant from entering upon the premises and erecting buildings thereon, and from carrying out his efforts to deprive the plaintiff, who was the owner, of the possession of the land. Only a biief citation from the decision of Chief Justice Horton in the case is necessary to show its dissimilarity with the one at bar:
“We do not understand from the petition that the defendant has actually turned the plaintiff out of possession and taken full and absolute possession, but onLy that he has entered upon the land under some pretended claim of title, and that he is seeking to oust the plaintiff of all possession, and to assume the management and control of the land at the time of the application for the temporary order of injunction. ”
These are all of the Kansas decisions which are cited by the court as authority for this proceeding by *384 injunction and as it was their citation, and not their contents, that made them a formidable objection to my dissent, I have taken the pains to thus briefly review them in order, that it may be seen that they are not authority for this case. There is, however, a Kansas case that is in point upon, the question here under consideration, but it is squarely against the conclusion reached by the court. It is the case of Bodwell v. Crawford, 26 Kan. 293 , wherein the defendant had entered into the possession of plaintiff’s building under an unauthorized lease, and was seeking to convert the building into a place of amusement, including theatrical performances. Concerning the wrongfulness of defendant’s possession, and plaintiff’s appropriate remedy, the opinion, which is in the clear language of Mr. Justice Brewer, says:
“ It is clear that the plaintiff, having never leased the lot or authorized its lease, is entitled to his legal action to recover possession. The defendant has taken possession without authority from the owner, and he has no right to such possession. In all such cases of the unauthorized taking possession of real estate, the 'Ordinary remedy is an action at law for the recovery of possession. Under some circumstances the owner may maintain forcible entry and detainer, and in all he may maintain ejectment. Both are actions at law. Has he the further remedy of injunction? * * The unauthorized possession by defendant is of course an injury to plaintiff’s rights, and entitles him to relief; but no one will contend that a mere unlawful possession gives occasion for the interference of a court of equity. The reasons for this are familiar to every lawyer. In equity neither party is of right entitled to a jury, but the constitution preserves inviolate the right of trial by jury as it exists at the common law, .and an action for the recovery of real estate is one, in which, at common law, parties are entitled to a trial by jury. They have a right to the verdict of a jury upon the questions whether plaintiff was owner, whether the defendant was in possession, and whether if so the possession was unlawful. ”
*385 On the subject of the right to the remedy by injunction to recover the possession of premises held without authority, it is said by the court in this case in the following clear language:.
‘ ‘ Where a party enters into the possession of premises without any authority from the owner and under pretense of a lease made by an unauthorized agent, and puts said premises to a use which is not forbidden by the law, the owner’s remedy is an action at law to recover the possession, and he may not resort to equity and obtain an injunction, and thus take away the constitutional right of a trial by jury, on the ground that such use is, in his judgment, immoral and mischievous in its tendencies, and one calculated to injure his reputation in the community.”
Now, in that case the plaintiff wras the absolute owner of the property in fee simple, and the defendant had no right, and never had had any right, to possession of the premises, yet the court held that the procedure to oust him from such possession could not be by injunction. Surely, Wallace, with simply a homestead entry upon the land, with no title and with no equity therein, as all the courts of last resort, except this one, have held, could not have a greater right to choose his remedy by injunction to dispossess Wood-ruff, than one who was not simply possessed of an inchoate right but possessed of an absolute title and an absolute and unqualified right to possession.
The argument resorted to by the court to uphold this proceeding by injunction, if it carried any logical sequence, would entirely wipe away the legal proceedings by ejectment and forcible entry and detainer whenever the complainant chooses to submit his controversy to the court rather than to a jury. The same argument of lack of speediness in legal proceedings would apply to all cases where the owner of land, or a person entitled to the possession thereof, had a right of action. If forcible entry and detainer and ejectment are not speedy enough remedies to give the *386 entire possession of a tract of land to one who lias an inchoate right of a homestead entry therein, how can they be speedy enough as remedies of relief to one who is the absolute owner of the land? If they are not speedy enough remedies in this case to afford Wallace relief in putting Woodruff out of his house and off of the seventy acres which he has in cultivation, and of which he had, before that time, had the rightful possession, but which he had lost by virtue of the decision upon Wallace’s contest, how can they be speedy enough remedies to give possession to real estate as against a tenant holding over after his term, or when one has sold the land to another person, or who, by reason of any lack of right, and therefore wrongfully, holds possession of land against another?
The conclusions of the court that “a person holding an uncancelled homestead entry upon land has a good and legal'title in the possession, and a contingent title in the patent,” and “he stands in the same relation towards the land as he would in any other matter wherein he had contracted and such contract had been revoked, or completely rescinded,” and that he has a “contingent interest in the patent,” and that he has a “contingent title, which he holds under his filing,” are not supported by any authority, and I dissent, particularly, also, to such conclusions. If this conclusion of the court, however, were true, that the entry-man had any such interest or title in the land, then it would of itself absolutely negative the right of Wallace to resort to a proceeding by injunction to dispossess Woodruff, for one who has such an interest in land as to give him an absolute right of possession, is entitled, under the Codes, which give the right to a remedy by ejectment to recover possession upon an equitable or possessory interest, to proceed by the action of ejectment.
This, it is true, would overrule Adams v. Couch, 1 *387 Okla. Rep. 17 , but the supreme court has heretofore, as I view it, done that in Sproat v. Durland, supra., and now hold that a homestead entry gives to a party an entirely different right and title than is consistent with the views of the court in Adams v. Couch. It would only be natural that the case should be overruled in this phase of it also.
I have contented myself with a review of the Kansas decisions cited as authority for the right of plaintiff below to proceed by injunction to dispossess Wallace, because such decisions, if they supported the citation, would be manifestly the strongest that could be relied upon. If they were authority for such action, it would be manifestly unnecessary to go any further, and, on the other hand, as they do not, and as what I claim to be the Kansas authority is the other way, it is unnecessary to consume further time and space in reviewing the authorities cited. A casual examination of the other cases and the authorities referred to, will make it apparent that they give no countenance for the ejectment of a person from the actual and peaceable possession of land by an order of injunction issued in the only action ever brought to determine the legality or illegality of such possession.
The most appropriate language that I can now refer to, in support of my view that the court ought not to disposses Woodruff from this land, through this proceeding by injunction, is that written by Mr. Justice Brewer, in Bodwell v. Crawford, supra., in which the court denied the right to the exercise of the remedy by injunction in a case .which, as we have seen, the party agrieved had certainly as much right to it as the plaintiff below has in this case as a means of dispossessing Woodruff from this land, and said:
“It is the duty of the courts to stand by the ancient land marks, to walk super antiquas vias. Additional *388 remedies must be established by other bodies and in other ways.”
I am authorized to state that Mr. Justice McAtee joins with me in this dissent.