DIERKS v. McDONALD

DIERKS v. McDONALD
1931 OK 151
298 P. 297
148 Okla. 215
Case Number: 21200
Decided: 04/21/1931
Supreme Court of Oklahoma

DIERKS
v.
McDONALD.

Syllabus

¶0 1. Indians -- Invalidity of Conveyance of Full-Blood's Homestead Allotment by His Surviving Wife with Two Children.
Where a full-blood member of one of the Five Civilized Tribes dies after the Act of Congress of May 27, 1908 (35 Stat. 312, ch. 199), is in effect, leaving a widow and two children born after March 4, 1906, the widow has no right, title, or interest in the homestead allotment of such allottee, which is subject to sale or transfer by her so long as the children or either of them shall live and until April 26, 1931, and a conveyance made by her of such homestead allotment is null and void even though it is made subject to the rights of said children therein.
2. Injunction--Interest Necessary to Maintain Suit to Enjoin Trespass.
An action to enjoin a trespass on real estate may not be maintained by one who has no interest in the real estate involved therein.

Appeal from District Court, McCurtain County; Geo. T. Arnett, Judge.

Action by Herbert Dierks against E. E. McDonald. Judgment for defendant, and plaintiff appeals. Affirmed.

Chas. E. McPherren, John S. Kirkpatrick, and Tom Finney, for plaintiff in error.
Barrett & Dickson, for defendant in error.

ANDREWS, J.

¶1 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.

¶2 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.