Garst v. Love & Word

Opinion of the court by Burwell, J.:

This cause was submitted to this court at the June, 1896, term thereof, and an opinion filed by Justice Bierer, speaking for the court, ( 6 Okla. 46 ,) in which it was held, that the demurrer of the plaintiff in error to counts or paragraphs 2, 3, 4 and 5 of defendants’ answer should have been sustained; that the trial court erred in overruling the same, and directed that said cause be remanded to the lower court, with instructions to sustain the demurrer of plaintiff in error to the counts or paragraphs above named of defendants’ answer, which *667 counts allege, in substance, that tbe pasture in which defendants in error pastured and cared for the cattle of plaintiff in error, for which the indebtedness sued on herein is alleged to have accrued, was maintained upon government land; that the plaintiffs, defendants in error, had no right or title to the same, and that they were unlawfully maintaining an unlawful enclosure, in violation of an act of congress of February 25, 1885; that by means of this unlawful enclosure they were speculating upon government land, and were exercising absolute control and possession thereof, and that by reason of their occupancy and control of such pasture, the defendant, plaintiff in error, was required to pay pasturage for his cattle in such enclosure.

At as subsequent term of this court, a re-hearing was granted. After a consideration of the entire case, the court is satisfied that the conclusions reached in the former opinion of this court are correct.

The judgment of the lower court is reversed, and the cause remanded with instructions to the trial court to overrule the demurrer to paragraphs numbered 2, 3, 4 and 5 of defendants’ answer, and to proceed with the cause in accordance with the judgment herein. The costs of this appeal to be taxed to defendants in error.

Tarsney, J., dissenting; all of he other Justices concurring.