"Now, gentlemen of the jury, is the defendant "In an action to recover damages for false responsible for this trespass upon the right of a imprisonment, evidence offered to show that the freeman to be always free, not only from wrongdefendant, in committing the acts complained of, ful arrest, but from wrongful accusation and acted in good faith, and without malice, is not wrongful punishment of the kind inflicted on admissible for the purpose of diminishing the this plaintiff 'without due process of law'? I general and actual damages which the plaintiff use this language in the sense that belongs to it has sustained. But where the plaintiff claims by the traditions of our race, and that has been exemplary damages on account of willfulness or stamped upon it by our law. For it is my opinmalice on the part of the defendant, such evi-ion that in the exaggerated attention we pay to dence is admissible in mitigation of such damages."

agents and employés were threatening to use field; and that there was no fence on the force to interfere with the peaceable posses- east side of it, but that the grazing land was sion of the plaintiff, and unless restrained fenced. Mr. Bartlett has paid the taxes on by the court would interfere with plaintiff's the land since he has claimed to be the own. possession. It was further alleged in said er thereof, but neither he nor Mr. Doolin repetition that the lands were valuable for oil; sided thereon. that there were more than three producing Mr. Doolin testified that he had at all oil wells owned by defendants, or some of times recognized Mr. Bartlett as the owner of them, offsetting plaintiff's land, and that, the land, and had held possession under him, unless the plaintiff was permitted to have the and that no other person had at any time peaceable and undisturbed possession of his asserted any claim or right adversely to Mr. land, defendants would take the oil belong- Bartlett until in January, 1917, the defending to the plaintiff and would irreparably ants went upon the premises, and constructed injure and damage said plaintiff; that said a tank, a small shack, and an oil rig. Tne damages could not be compensated in a testimony with reference to the way in which money judgment, and that if the defendants the defendants went upon the premises is were not restrained from interfering with only slightly conflicting. On this phase of the plaintiff's possession, and at the same the case Mr. Doolin's testimony is as follows: time were permitted to continue the operation of the offsetting wells, the plaintiff in the last two years to any one? A. No, sir. "Q. Did you ever surrender that possession would lose large and unascertainable sums Q. Did you authorize any one to come on it? of money; and that he had no adequate rem- A. Mr. McCray called me up over the 'phone edy at law. The plaintiff also charged that one night, and asked me if I cared if he built a little house over on there inside of the pasthe offset wells had been operated for about ture, and I told him I didn't care. Q. Is that two months, that large quantities of oil had all that was said? A. And he asked me if I been produced and removed from said prem- didn't. Q. Did he mention Mr. Bartlett's name? cared if he built a tank in there, and I said I ises, and that by reason thereof the plaintiff A. No, sir. Q. Did you know what Mr. Mchad been damaged in the sum of $20,000, for Cray's purpose was at that time? A. No; I which amount judgment was prayed. On plaintiff's application the court granted a temporary restraining order, and after a hearing was had, pursuant to notice, at which the respective parties introduced evidence, a temporary injunction was ordered. It is from this action of the trial court that the defendants have appealed to this court. The suit for damages had not been tried at the time the appeal was taken.

The record shows that Mr. Bartlett, the plaintiff, went into possession of the land in controversy in 1906, claiming title thereto under deeds from the purported heirs of Harper Jessie, the allottee of said lands; that he immediately rented the same to one William Blair, who occupied it for about two years, cultivated a portion thereof, and used the remainder for pasture purposes, for which he paid the plaintiff the sum of $40 per year rental; that after Mr. Blair left Mr. Bartlett rented the land to a Mr. Doolin, who had been Mr. Blair's foreman, and who took possession of the land and has occupied the same ever since under rental contracts from year to year, and has paid the rent to the plaintiff, except for the years 1911 and 1912, at which time the United States government attempted to cancel the allotment, and made a tentative filing thereon for another allottee, the rental for said years being paid to the Indian agent. The government, however, abandoned its efforts to cancel the allotment, and since said time Mr. Doolin has held the land under Mr. Bartlett and has paid the rent to him. The record further discloses that a part of the land was in cultivation and the remainder was pasture land; that Mr. Doolin was using the land for grazing and raising feed; that

did not.

Q. Was it your purpose or intention at that time to surrender possession to Mr. McCray? A. No, sir. Q. You simply stated to him that you had no personal objections to his building the house? A. Yes, sir. Q. And that you had no personal objection to his building a tank over there? A. Yes, sir. Q. And it wasn't your intention to let him have possession? A. No, sir; and I intended to hold that property the same as I had been."

Mr. McCray, one of the defendants, testified that he was interested in an oil and gas mining lease on the land, and was associated with the Sapulpa Petroleum Company and that he commenced building a house on the premises on the 3d day of January, 1917. with reference to the manner in which he entered upon the land he testified as follows:

for permission to build a house on there? A. "Q. Something was said about your asking Mr. Doolin had his cattle in that pasture; the grass wasn't eat down from the past season; at least it didn't have that appearance, and he was wintering his cattle in there along the creek, and I called him up and told him I had an oil and gas lease on the property, and that I was going to build a house on the corner; that I would have the boys be careful and see that we didn't let his stock get away. Q. You had learned it was his stock? A. Yes, sir."

The evidence further disclosed that the defendants, through some of their employés, occupied the house from the 13th day of January, until the 20th day of March, when the plaintiff procured their arrest for trespassing. The criminal proceedings do not appear to have been prosecuted to a termination at the time of the institution of the present action, but seem to have been abandoned. After the arrests plaintiff secured a temporary restraining order, which prevented the defendants from going back upon the prem

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and enjoyment, and that such an appropriation was manifested by either inclosing, cultivating, improving, or adapting it to such use as it was capable of. It is also well settled that a person may be in possession of land without actually residing thereon. person may also be in possession of land without a personal representative thereon. Womble v. Pike et al., 17 Okl. 122, 87 Pac. 427; United States v. Rogers (D. C.) 23 Fed. 658, 666; Barstow v. Newman, 34 Cal. 90; Fuller v. Jackson (Tenn.) 62 S. W. 274.

Defendants invoke the proposition of law | tice that the land was in his exclusive use that courts of equity will refuse to interfere by granting an injunction, where the plaintiff is out of possession and claims possession against a defendant in possession under a claim of right, and cite numerous authorities in support thereof. This proposition of law is sound, and is not controverted by the plaintiff. His counsel justify the action of the trial court in granting the temporary injunction on the ground that plaintiff was in possession and that courts of equity will grant injunctional relief to a plaintiff in possession against a defendant out of posses- Applying these principles to the facts heresion who is seeking to gain possession by inbefore stated, it seems clear that the plaintrespass. The defendants also contend that tiff was in the open, notorious, peaceable, the plaintiff secured possession of the prem- and uninterrupted possession of the land in ises by the abuse of legal process in having controversy, and had been for a number of some of the defendants arrested; that plain-years at the time the defendants went upon tiff ousted the defendants wrongfully, and the premises to drill for oil and commenced for these reasons he is not in court with clean hands, and because of his iniquity a court of equity will grant him no relief.

[1] We think that, in determining the correctness of the order of the trial court, the fact of the ouster of the defendants is unimportant, and not decisive of the case, for the reason that the rights of the litigant parties may be correctly determined by their status and relations to each other prior to the ouster of the defendants resulting from the arrests. The title to the land in controversy is disputed, but counsel for plaintiff and counsel for defendants, respectively, properly rest this branch of the case upon the question of possession. Counsel for defendants earnestly insist that the defendants were in possession and that the plaintiff was not in possession, so our first inquiry is naturally directed to the question to what, under the law, constitutes possession. It has repeatedly been held by the courts that what constitutes possession of land is a mixed question of law and fact, and that possession consists of the exercise of acts of dominion over land, in making the ordinary use of it, and taking the ordinary profits it is capable of yielding in its present state. New Jersey & N. C. Land & Lbr. Co. v. Gardner-Lacy Lumber Co., 178 Fed. 772, 102 C. C. A. 220; Lofstad v. Murasky, Judge, 152 Cal. 64, 91 Pac. 1008; Illinois Steel Co. v. Jeka, 123 Wis. 419, 101 N. W. 399; Staton v. Mullis, 92 N. C. 623; Williams v. Buchanan, 23 N. C. 535, 35 Am. Dec. 760; Frisbee v. Town of Marshall, 122 N. C. 760, 30 S. E. 21; Rice v. Frayser (C. C.) 24 Fed. 460; Ft. Dearborn Lodge v. Klein, 115 Ill. 177, 3 N. E. 272, 56 Am. Rep. 133; Gilkerson-Sloss Comm. Co. v. London, 53 Ark. 98, 13 S. W. 513, 7 L. R. A. 403; Ellicott v. Pearl, 10 Pet. (35 U. S.) 412, 9 L. Ed. 475; Goodson v. Brothers, 111 Ala. 589, 20 South. 443; 31 Cyc. 925. In Lofstad v. Murasky, Judge, supra, it was held that a person was in actual possession of land where there was such an appropriation of the land by the claimant as conveyed to the community where it was situated visible no

He

to construct the necessary improvements for
that purpose. Did the plaintiff lose posses-
sion, and the defendants gain possession, by
this entry? We think not. Plaintiff's pos-
session, peaceably enjoyed for so long a time,
could be lost either with or without his con-
sent. It would have been lost with his con-
sent if he had transferred his possession to
another with the intention to divest himself
of it, or had done some act that manifested
his intention to abandon possession.
would have lost possession without his con-
sent if another person had driven him away
by force, or had taken possession during his
absence and had prevented him from re-en-
tering. Bouvier's Law Dictionary, p. 435.
There is nothing in this record tending to
show that Mr. Bartlett lost possession of the
land, either with or without his consent.
The fact that Mr. McCray stated that he
would admonish defendants' employés to be
careful and not let Mr. Doolin's stock get
away clearly shows that, when the defend-
ants and their employés went upon the land
that they recognized that Mr. Doolin was in
possession of the premises, which he was
holding for and under the plaintiff. The pos
session thus obtained by the defendants did
not constitute an exclusive or adverse pos-
session as against the plaintiff. The land
was only rented to Mr. Doolin for agricul
tural and pasture purposes, and he certainly
was not authorized to give the defendants
the right to go upon the premises of his land-
lord and commit waste, even if he had de-
sired to do so. It is well settled that an en-
try upon lands for the purpose of committing
waste is a trespass, and it is likewise well
settled that the cutting of timber or the tak-
ing out of minerals is waste. 14 Ruling Case
Law, p. 444, § 145. And such injuries as go
to the destruction of the estate are consider-
ed irreparable, and a trespass will be enjoin-
ed. 22 Cyc. 831, 832.

On the face of the proceedings this controversy hinges upon the question as to which of the contending parties was in possession of the land at the time of the institution of

The judgment of the trial court is affirmed. All the Justices concur.

the injunctional proceedings, but the purpose | ample authority to safeguard their interests, of the contending parties is to secure or hold | if in a proper proceeding a probability of repossession of the surface in order that they covery is shown. may, unmolested, explore for the oil supposed to be beneath, and. as they are seeking the wealth below the surface of the land we will look below the surface of the proceedings and examine further into the substance of the controversy. When we bear in mind that the principal purpose of the defendants in going upon this land was to drill for oil, we must conclude that at least so far as Mr. Bartlett was concerned the entry was surreptitious. The entry upon the inclosure of another is a trespass, where it is made surreptitiously as well as where it is made by force. Tidwell v. Chiricahua Cattle Co., 5 Ariz. 352, 53 Pac. 192.

HUFF v. LYNDE-BOWMAN-DARBY CO.
(LUCKEY, Intervener). (No. 9368.)
(Supreme Court of Oklahoma. Oct. 1, 1918.)

(Syllabus by the Court.)

1. LIMITATION OF ACTIONS 167(2)-FORECLOSURE-LAW IN FORCE IN INDIAN TERRI

TORY.

2. LIMITATION OF ACTIONS 48(7)—ACTION TO DECLARE DEED A MORTGAGE.

This action arose in Indian Territory prior to statehood, and under the law then in force, after the year 1887, a right of action to fore[3] While the defendants may have believ-close a mortgage was limited to the same length of time as an action on the debt secured ed that they had the right to enter upon the thereby. plaintiff's land and to drill for oil, and in so doing did not have any criminal intent to commit a trespass, still, since their original intention was to commit a trespass by taking out minerals, the entry became wrongful ab initio. In High on Injunctions, § 356, we find the following qualifications of the general rule that courts of equity will not interfere, by preliminary injunction, to change the possession of real property:

"Notwithstanding the general rule, as stated in the preceding action, by which courts of equity refuse to interfere with possession before the right is determined at law, if defendant's possession is but an interruption of the prior possession of complainant, whose right is clear and certain, an injunction may be allowed without compelling complainant to establish his title by an action at law. The interference in such cases rests, as in cases of nuisance, upon a clear and certain right to the enjoyment of the subject in question, and an injurious interruption of that right, which upon just and equitable grounds ought to be prevented."

Other text-books and authorities are thoroughly in accord with this principle. Hadfield v. Bartlett et al., 66 Wis. 634, 29 N. W. 639; Ex parte Jas. S. Conway, 4 Ark. 302, 303.

[2] In Pomeroy, Equity Jur. (2d Ed.) § 378, it is said:

"Equity will not permit a mere form to conceal the real position and substantial rights of parties. Equity always attempts to get at the substance of things, and to ascertain, uphold, and enforce rights and duties which spring from the real relations of parties. It will never suffer the mere appearance and external form to conceal the true purposes, objects, and consequences of a transaction."

We realize that the conclusion we have reached permits the plaintiff to drill for, remove, and market the oil from the land in controversy, if he desires to do so. If, in fact, he has no legal title to the land, as claimed by the defendants, and the defendants have a duly approved oil lease from the rightful owner (questions not before us at this time), this might work an injustice to them, except for the fact that the courts have

invoke the powers of the court to declare a deed One cannot come into a court of equity and a mortgage, and then interpose the plea of the statute of limitations against the mortgage, for in that state of case the statute of limitadecree converting the deed into a mortgage. tions only begins to run from the date of the

(Additional Syllabus by Editorial Staff.) 3. MORTGAGES 414-DEED AS MORTGAGETENDER-EQUITY.

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enforce lien, plaintiff's failure to tender reconIn suit to declare deed a mortgage and to veyance of land did not defeat relief, as the parties, might compel plaintiff to do equity court of equity, in order to do justice between before granting him any relief.

Commissioners' Opinion, Division No. 3. Error from District Court, Wagner County; R. P. De Graffenreid, Judge.

Action by the Lynde-Bowman-Darby Company against J. L. Huff, in which Thomas Luckey intervened. Judgment for plaintiff, and defendant brings error. Affirmed.

Jay A. Anderson, of Muskogee, for plaintiff in error. Grant Foreman and J. D. Simms, both of Muskogee, for defendant in error.

HOOKER, C. The essential facts in this case may be gathered from the findings of fact made by the trial court: That on July 19, 1904, Thomas Luckey and wife conveyed by warranty deed to W. S. Fears, for a consideration of $900, the real estate involved in this action, but said deed was intended by the parties as a mortgage; that on the 16th day of January, 1906, Fears conveyed the same to another by a similar deed, and on the 15th day of July, 1907, the defendant in error, Lynde-Bowman-Darby Company, had conveyed to it by like conveyance this property; that all of said conveyances were properly recorded, and were but assignments of the interest of Fears in said property, and were made with knowledge of the true interest acquired by Fears by virtue of the warranty deed to him in 1904. In January, 1905, Luck