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1902 OK 28
69 P. 1132
12 Okla. 3
Decided: 07/17/1902
Supreme Court of Oklahoma


Error from the District Court of Kay County; before B. F. Burwell, Trial Judge.

S. H. Harris, for plaintiff in error.
Pollock & Lafferty, for defendant in error.


ΒΆ1 This is an action for mandatory injunction. At the time it was tried by the district court it was held by this court that mandatory injunction would lie to remove a claimant from a tract of government land after his opponent in the contest had won before the interior department. Since the trial of this case in the lower court this rule has been reversed by the supreme court of the United States in the case of Black v. Jackson, 177 U.S. 349, 20 Sup. Ct. 648, 44 L. Ed. 801, and this court is bound by the doctrine enunciated therein. We have not examined the record to see if reversible error has been committed, for the reason that the case was tried upon a wrong theory of the law, for which this court is responsible, and we deem it only just that we reverse it without regard to error, and give the parties an opportunity to try it in conformity with the views expressed in the case of Black v. Jackson, supra, which case held that the parties have an adequate remedy at law, and are entitled to have the issues involved submitted to a jury. For the reasons herein stated, this case is hereby reversed, and a new trial granted, and remanded to the district court from which it was appealed, and said court is directed to proceed as herein directed. Costs taxed to the appellee. It is further ordered that the parties be placed in the same occupancy of the land that they were in at the time of the commencement of this action, and to so remain until the further order of the court or the judge thereof; but this order is not intended to preclude the parties, or either of them, from pursuing any other remedy which either may have in any of the courts of the territory. All of the justices concurring, except BURWELL, J., who tried the cause below, not sitting, and IRWIN, J., absent.