The Wichita daily eagle., 1900-04-27
IN BLACK VERSUS JACKSON
Full Text OF the Decision Reversing
Oklahoma Supreme Court,


Oklahoma Supreme Court,
Guthrie, o. T, April 26.-The full text
Of the much-discussed Black versus Jack
son decision Of the United States supreme
court. which reversed the oklahoma su-
preme court is made public. 1t follows:
Supreme Court of the United States.
No. 1G7-October Term. 1899.
E. F. Black. appellant, vs.. Walter 2.
Jackson, appeal from the supreme court
Of the Territory of Oklahoma
Petition filed by Jackson against Black
III the district court Of Kay county.
After stating the facts and quoting many
decisions, the court says: In the opin-
ion in the present case the supreme court
of the territory said nothing about de-
PENDANTS contention that he was entitled
10 a trial by jury. Sptaking OF the same
justice who in the court below delivered
the opinion in the present case the su-
preme court of the territory in Brown
VS.. Newton, O. T., 42S-432, conceded that
in a case between contesung entrymen
the one who obtained the decision of be
land office might avail himself of the
statutory provisions relating to forcible
entry and detainer but that such rem
edy was not sufficiently eficacious for the
reason that by delays and appeals a
party in possession of a homestead could
keep his adversary out of possession of
the land for years" But the same reas-
on could be urged to justify the extra
ordinary remedy of a mandatory injunc-
ton in order to put defendant out of
possession even where the plaintiff was
entitled to maintain eiectment or an ac-
ton in the nature of ejectment The
suggestion referred to leaves out of view
the distinction made by the constitution
of the United States between cases in
law and cases in equity (numerous
authorities and 1t also fails to recognize
the provisions of the seventh amendment
securing the right of trial by Jury in
suits at common law" where the value
in controversy exceeds $50. That amend
ment SO far as ii secures the right of
tria, by jury applies to judicial proceed
ihgs in the territories of the United
States (authOrities) 50 that a court Of a
territory authorized as Oklahoma was to
pass iaw1 not inconsistent with the con-
situti0n of the United States. could not
proceed n a Common law" action as If
il were a suit in equity and determine
by mandatory injunction rights for the
protection or enforcement of which there
was a plain and adequate remedy at law
according to the established distinctions
between law and equity And this evil
dentiy is in accordance with the statutes
of Oklahoma providing that while the
court must try issues of law. unless re-
ferred in the mode prescribed, tissue Of
fact arising in actions for the recovery
or of specific real or personal property,
shall be tried by a jury, unless a jury
trial is waived or a reference be ordered"
See O. T. OS93), 500. 4l56.
In the case before us no special grounds
are disclosed that would authorize the
court 10 issue a mandatory Injunction
and determine without a jury the issue
as to the right of possession. If it he
said that the plaintiffs residence upon
the land for given time is necessary in
order that he may earn a patent, the
answer is that the defendant is not al
legged to be in the actual possession of
the entire land embraced by the plain
III entry, nor does it appear that the
plaintiff may not, without Interference
by the defendant. maintain a residence
upon that part Of the land which is not
IN actual possession Of the defendant and
do al that may be Observation-Disclosures
do all that may be requisite In order 10
earn patent. We may also observe that
II Is not alleged that the defendant is
doing any actual injury to the part of
the land repainins in his actual pos
session 1t does not appear that he has
done anything except continue in Dos
session Of that part. II Black prevents
0lRl m Fr. f-f-4
acres in question he is entitled to bring
his action Off forcible detainer ana 10
recover possession unless II appears that
the land Office erred, as matter of law.
In deciding for him. It is not meant by
this that an action Of forcible detainer is
the only remedy that can be ado3ted by
the plaintiff
As In Oklahoma the distinctions be-
tween actions at law and suits in equity
Is abolished-each action being called 4
civil action, whatever the nature Of re-
lief asked %. T. Stat, 1893 ia. .. SSS2)
We perceive no reason why the case ma,
not proceed in the trial court under tba
pleading as they have been framed. win
the rignt Of the defendant 70 a trial b,-
Jury in respect % all issues which a.
cording 70 the recognized distinctions he
tween actions at common law ana suits
in equity, are determinable In thar mode
Third, one Of the defenses made b,
Black is that the plaintiff entered up3,
the land in violation of the fct Of Marco
i 1879, C25 Stat. 80. 81. and Of the act
Of March :. 1882 > Stat. go. los. c 4Ie
q well as OF the proclamation Of the
president OF March 25, 1S>s, e Stat. 15it
l7i0) The acts and proclamation referred
10 related - the lands obtained by the
United States under The agreement vi. h
the MuScogee or Creek nation of Indians
In the Indian territory The contention
. the defendant is that the plaintiff by
his conduct DISQUALIFIED himself from ar-
curing any interest in the tract OF lana
acre in DISPUTE which was part of The
lands obtained from the AIuscorea or
Greek Indians and consequently the land
otiice erred as matter OF law in It's d.
eis.on for the PLAINTIFF numerous a4,tbori-
uesl No opinion was expressed an this
question by the supreme court e the ter
ritory. and we need not now express an
opinion. II the 3!aintiT should proceed
against the defendant in some othe-
mode than by injunction. the facts con
Seeted with his alleged unlawIul enter