fendants in their brief have called our atten- It is also urged that an injunction in this tion to cases which are in point and support case is not the proper remedy, for the reason a rule contrary to the one we here adopt. In that the actions of defendants of which the such cases it is held that flood waters, al- plaintiff complains are completed acts and though they return to the same water course, are not grounds for a preventative or mandaor flow into other water courses, become sur- tory injunction. The general rule that a face waters, and the owner of the lowlands past or completed act is not a ground for inmay protect himself against them by dikes junction does not apply where it is sought to or embankments; but in our opinion these enjoin the maintaining of a levee or dike cases are against the weight of authority and which has been constructed and which causare not supported by the better reasoning. es an overflow of plaintiff's land. The object Sullivan v. Dooley, and Cairo, V. & C. Ry. Co. sought by the injunction is not only to prev. Brevoort, supra. vent its construction, but also to prevent its continuance, and the court may enjoin such continuance as it has in this case. Spelling's Extraordinary Relief, par. 327. Defendants contend that plaintiff is not entitled to relief in this action for the reason that he has violated those two maxims of equity which require that he who seeks equity must do equity, and that he who comes into a court of equity must come with clean hands. The wrongdoing with which they charge him is that he has constructed to the north of the levee constructed by defendants an embankment along the boundary line of his farm by which he throws extra water into Pond creek, thereby increasing its volume and rendering the town site more subject to overflow. As to this contention the court makes the following finding: "The court finds that the plaintiff has constructed at the northwest corner of his premises a small embankment for the purpose of turning from his premises the surface water, which had been conveyed to and upon his premises by ditches, grades, and drains, constructed on the public highway forming the western boundary of said premises; and that said embankmeitt was so constructed by the plaintiff several years after the building or construction of the dike or embankment on the eastern bank of the stream by the town of Jefferson." Plaintiff, in protecting himself against the surface waters by building such embankment, exercised the right conferred upon him by the common law, and the facts fail to show that he has violated any duty imposed upon him by law. C., R. I. & P. Ry. Co. v. Johnson, supra. It is also contended that plaintiff has an adequate remedy at law, and that he has fail ed to allege or prove that defendants are insolvent and could not satisfy all claims for damages which he might sustain. This contention is without merit. The evidence in this case discloses that Pond creek overflows at frequent intervals, and an action for damages for the injury plaintiff has already suffered would not be adequate relief, in that after each recurring flood he would be required to bring another action to recover the damages sustained by him. To avoid this multiplicity of suits, equity will interpose and give him relief by injunction. Sullivan v. Dooley, supra; Roberts v. Vest, 126 Ala. 355, 28 South. 412; Railway Co. v. Tait, 63 Tex. 223; Railway Co. v. Seymour, 63 Tex. 347. The judgment of the lower court is affirmed. KANE, C. J., and WILLIAMS, DUNN, and TURNER, JJ., concur. (23 Okl. 720) PIONEER TELEPHONE & TELEGRAPH OF CHELSEA. A party who procures a temporary injunction to issue may appeal from an order of the district court dissolving or modifying the same, 66, par. 4759, of Wilson's Revised & Annotated under the provisions of section 561, art. 22, c. Statutes of Oklahoma of 1903; but the petition in error, in order to confer jurisdiction upon the Supreme Court to hear and determine the same, Supreme Court within 30 days from the date must be filed in the office of the clerk of the of such order, and the court or judge making the same has no power to extend or enlarge it. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1885; Dec. Dig. § 339.*] (Syllabus by the Court.) Error from District Court, Craig County; T. L. Brown, Judge. Action by the Pioneer Telephone & Telegraph Company against the Incorporated Town of Chelsea. Judgment for defendant, and plaintiff brings error. Dismissed. C. J. Wrightsman, James B. Diggs, and C. E. Bush, for plaintiff in error. J. W. Swarts, for defendant in error. DUNN, J. On the 17th day of April, 1907, the Pioneer Telephone & Telegraph Company, plaintiff in error, filed its complaint in the United States District Court of the Northern District of the Indian Territory, praying an injunction against the defendant, the incorporated town of Chelsea, and on the same day a temporary restraining order was by the judge of said court allowed and issued, and the hearing of the application for a temporary injunction set for April 27, 1907, at Vinita. On that day the temporary in For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes made in chambers, modifying a temporary injunction, will be dismissed, where it is filed more than 30 days after the making of such junction was granted as prayed for, and the cause referred to a master in chancery to take evidence. No evidence was taken under this order, and on the 6th of December, 1907, state-order. The right to an appeal from an order hood having intervened, the defendant filed its motion in the district court of Craig county To dissolve the temporary injunction theretofort granted, for the reason that plaintiff had failed to use due diligence in the prosecution of its cause, and on the hearing of the said motion the court sustained the same, and at the same time entered an order allowing plaintiff 30 days in which to make, prepare, and serve a case-made for the purpose of effecting an appeal to the Supreme Court, and allowing defendant 10 days after the service of said case-made within which to suggest amendments thereto, the same to be settled and signed on 5 days' notice in writing by either party. The parties prepared the casemade, and plaintiff in error filed its petition in error in the Supreme Court on January 13, 1908. of the judge modifying a temporary injunc The parties have briefed the case here on its merits, but in our judgment this court does not acquire jurisdiction to hear and determine it. Section 561, art. 22, c. 66, par. 4759, Wilson's Rev. & Ann. St. Okl. 1903, provides: "When an order, discharging or modi- As the order made in this case was made fying an attachment or a temporary injunc- and entered December 6, 1907, and the petition, shall be made in any case, and the par- tion in error and case-made not filed until ty who obtained such attachment or injunc- after the expiration of more than 30 days tion shall except to such order, for the pur- from that date, no jurisdiction was conferred pose of having the same reviewed in the Su- vesting power and authority in the court to preme Court upon petition in error, the consider and determine the questions raised. court or judge granting said order shall, upon The proceedings in the allowance, denial, disapplication of the proper party, fix the time, solution, or appeal connected with a temporanot exceeding thirty days from the discharge ry injunction as a rule determines nothing or modification of said attachment or injunc- definitely in the main case; and in this intion, within which such petition in error stance we see no reason why the court could shall be filed; and during such time the exe- not have proceeded to the trial of this cause cution of said order shall be suspended, and as if no such actions had taken place. 10 until the decision of the case upon the peti- | Encyclopædia of Pleading & Practice, 1089. tion in error, if the same shall be filed; and the undertaking, given upon the allowance of the attachment, shall be and remain in force until the order of discharge shall take effect. If such petition in error shall not be filed within the time limited, the order of discharge shall become operative and be carried into effect; and the certificate of the clerk of the Supreme Court that such petition is or is not filed, shall be evidence thereof." The Supreme Court of the territory of Oklahoma in the case of Herring et al. v. Wiggins, 7 Okl. 312, 54 Pac. 483, held: "A party who procures a temporary injunction to issue may appeal from an order of the judge, made in chambers, modifying such temporary injunction, under the provision of section 4463, St. Okl. 1893; but the petition in error must be filed in the Supreme Court within 30 days from the date of such order, and the court or judge has no power to extend or enlarge such time. A writ of error, for the purpose of reviewing an order of the district judge, The appeal is accordingly dismissed, but the cause itself may, of course, proceed to trial as if no appeal had been taken. KANE, C. J., and TURNER, WILLIAMS, and HAYES, JJ., concur. (23 Okl. 612) GRABOW v. McCRACKEN et ux. M. and another conveyed by warranty deed to G. a certain tract of land, for a consideration recited in the deed of $2.900, at said time there being standing upon said land a matured crop of corn; it being agreed by parol that the grantors should gather and remove from said premises said corn as a part of the consideration of said conveyance. The grantee aftersaid deed, there being no reservation of said crop wards claimed said crop of corn by virtue of in the face thereof. Held, that it might be shown by parol that said corn was reserved by the grantors as a part of the consideration for said conveyance. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 116; Dec. Dig. § 72.*] (Syllabus by the Court.) its nonpayment, notwithstanding the receipt of the purchase money may be acknowledged in the deed. Now, suppose that the defendant, as a part of the consideration to the plaintiff for the land described in the deed, Error from District Court, Kingfisher Coun- had agreed that the plaintiff should have a ty; C. F. Irwin, Judge. The evidence Action by Johann Grabow against William McCracken and wife. Judgment for defendants, and plaintiff brings error. Affirmed. On the 18th day of October, A. D. 1906, the plaintiff in error, as plaintiff, commenced his action in the probate court of Kingfisher county, territory of Oklahoma, against the defendants in error, William McCracken and Lucy McCracken, as defendants, by petition in replevin, alleging in due form that he was the owner and lawfully entitled to the immediate possession of certain personal property, to wit, all the corn that was shucked and standing in a field upon a certain tract of land, all kaffir corn and hay on said land, and all kaffir corn in shocks standing on said land, etc. tended to show that on the 13th day of October, A. D. 1906, the defendants, by their warranty deed in regular form, conveyed in fee simple to the plaintiff the land upon which said corn and hay were then standing, same being matured and ready to be gathered and harvested; that then and there, as a part of the consideration of said conveyance, it was verbally understood that said corn and hay were reserved and should remain the property of the grantors, and not Said become the property of the grantee. cause was tried in the probate court of said county, and on November 1, A. D. 1906, was appealed to the district court, and on the 25th day of January, A. D. 1907, same was tried in the district court of said county without the intervention of a jury, and judgment rendered in favor of the defendants. Thereafter, in due time, a motion for a new trial was filed and overruled, and exceptions saved. By proceeding in error an appeal was prosecuted to the Supreme Court of the territory of Oklahoma, and, by virtue of the provisions of the enabling act and the Schedule to the Constitution, same is now before this court for determination. Noffsinger & Hinch, for plaintiff in error. F. P. Whistler, for defendants in error. WILLIAMS, J. (after stating the facts as above). The sole question for determination is whether or not, as a part of the consideration of the deed, it was permissible to reserve by parol the standing, ungathered, matured crop of corn and hay on said land. In the case of Heavilon v. Heavilon, 29 Ind. 513, the court said: "It is well settled that a vendor, in a suit for the purchase money, may prove, by parol evidence, the amount thereof, the terms of payment and crop of wheat growing on another tract of land owned by the defendant, and had subsequently refused permission to cut and carry it away, would any one contend that the plaintiff could not recover of the defend ant the value of the wheat? Or if, as in this case, the plaintiff had harvested the wheat without objection, that the defendant could recover back its value? Does not the same principle apply to this case? Can any logical reason be shown why it should not? Admit that the deed upon its delivery conveyed the growing wheat, and still it was not a fixture which constituted permanently a part of the land; it was the subject of sale by parol, and what rule of law is there to prohibit the defendant from making such sale a part of the same contract by which he would become the owner, or that would convert the deed into an estoppel against parol proof of such sale? If, as alleged in the reply, the defendant contracted the wheat to the plaintiff, as a part of the consideration of the land, then the execution of the deed was a part of the contract on the part of the plaintiff, and entitled him to the wheat, and no question under the statute of frauds, contended for by the appellee, could arise in the case." See, also, Harvey v. Million, 67 Ind. 93. In the case of Austin v. Sawyer, 9 Cow. (N. Y.) 39, the court said: "Whatever may be the rule of construction elsewhere, we are not at liberty here to question the validity of a parol contract for the sale o growing crops. Was there sny evidence of such a contract? Rejecting all that passed anterior to and at the time of executing the written contract, the proof is that Wilcox, when treating with the defendant as to the Sale of the farm, declared the wheat to belong to the plaintiff. This is sufficient, in my judgment, to authorize a jury to presume a formal and valid contract for the sale of the wheat." In the case of Backenstoss v. Stahler's Adm'rs, 33 Pa. 251, 75 Am. Dec. 592, the court said: "It is a rule of common law that growing crops are personal property, but pass by conveyance as appurtenant to the land, unless severed by reservation or exception, and this rule has not been altered by statute of frauds and perjuries. A party may show by parol that the growing crops were reserved on a sale of the land, although there may be no exception in the deed." See, also, Harbold v. Kuster, 44 Fa. 392. In the case of Neill v. Chessen, 15 Ill. App. 266, it is held that parol evidence is admissible to show that the grantor should have *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes the growing wheat, and the rent for a certain time, when the same is not reserved in the face of the deed. In the case of Baker v. Jordan, 3 Ohio St. 438, it is held that growing corn may be reserved by parol from the operation of a deed, in common form, for the land whereon it grows; that growing corn may be a part of the realty for some purposes, but it is generally to be considered as personalty; that when the evidence of such understanding is produced it is not to contradict the deed, for with that it is perfectly consistent, but it is to show that what in some instances would go with the land as a part of the realty was, in that case, converted into personalty by the will of the parties, and thus to hold the deed to its true meaning and effect. See, also, Phillips v. Keysaw, 7 Okl. 674, 56 Pac. 695; Aull Savings Bank v. Aull, 80 Mo. 199; Champion v. Mundy, 85 Ky. 31, 2 S. W. 546; Richardson v. Traver, 112 U. S. 423, 5 Sup. Ct. 201, 28 L. Ed. 804; McCrea v. Purmort, 16 Wend. (N. Y.) 460, 30 Am. Dec. 103; Hersey v. Verrill, 39 Me. 271; Quimby v. Stebbins, 55 N. H. 420; Steed v. Hinson, 76 Ala. 298; Fraley v. Bentley, 1 Dak. 25, 46 N. W. 506; Mobile, etc., R. Co. v. Wilkinson, 72 Ala. 286; McMahan v. Stewart, 23 Ind. 590; Frey v. Vanderhoof, 15 Wis. 397; Drury v. Tremont Implement Co., 13 Allen (Mass.) 168; McDill v. Gunn, 43 Ind. 315. The following authorities support the contrary rule: Kammrath v. Kidd, 89 Minn. 380, 95 N. W. 213, 99 Am. St. Rep. 603; Gib bons v. Dillingham, 10 Ark. 9, 50 Am. Dec. 233; Winn v. Murehead, 52 Iowa, 64, 2 N. W. 949; Stewart v. McArthur, 77 Iowa, 162, 41 N. W. 604; Adams v. Watkins, 103 Mich. 431, 61 N. W. 774; Taylor v. Southerland et al., 7 Ind. T. 666, 104 S. W. 874; Chapman v. Veach, 32 Kan. 167, 4 Pac. 100. ed, and, if the verdict or findings of the court were in his favor, it was the duty of the court to enter judgment for the damages assessed against the plaintiff and his sureties. [Ed. Note.-For other cases, see Forcible Entry and Detainer, Cent. Dig. § 152; Dec. Dig. § 30.*] 2. APPEAL AND ERROR (§ 1010*)-REVIEWFINDINGS OF FACT. Where there is any evidence reasonably tending to sustain the findings of the court below on a question of fact, this court will not disturb such findings. Error, Cent. Dig. § 3939; Dec. Dig. § 1010.*] Appeal from the United States Court for the Western District of the Indian Territory; before William R. Lawrence, Judge. Action by J. T. Lipscomb against D. R. Allen and others. Judgment for defendants, and plaintiff appeals. Affirmed. West, Mellette & Jones, for appellant. Thomas H. Owen and De Roos Bailey, for appellees. KANE, C. J. This case, in so far as the validity of the contract involved is concerned, is in many respects the same as case No. 890, Leonard G. Beck et al. v. Lizzie Jackson et al. (decided at this term of court) 101 Pac. 1109. It seems that the plaintiff in error, J. T. Lipscomb, is an intermarried citizen of the Creek Nation; that prior to the passage of the Curtis bill (Act June 28, 1898, c. 517, 30 Stat. 495) he cultivated and improved a large farm therein, a part of which is the land in controversy; that after the passage of the Curtis bill he was advised by counsel he would have to dispose of all his holdings, except a sufficient amount to supply allotments for the members of his family who are entitled thereto, within nine months after the date of the passage of that act. That, in pursuance of this advice, on the 21st day of March, 1899, he disposed of the improvements on the tract of land involved in this suit to Susan Morris, one of the defendants herein, who is a citizen of the Creek Nation, and she took the land on which the improveThe ments are situated as her allotment. contract of purchase and sale between LipsThe judgment of the lower court is affirm- comb and Susan Morris is in words and figed. All the Justices concur. The weight of authority and reason supports the rule, at least, that a matured crop of corn and wheat standing ungathered upon a tract of land may be specifically reserved by parol in the sale of the land, as a part of the contract price or consideration of the deed. (23 Okl. 818) LIPSCOMB v. ALLEN et al. (Supreme Court of Oklahoma. May 12, 1909.) 1. FORCIBLE ENTRY AND DETAINER (§ 30*)— VERDICT FOR DEFENDANT — - ASSESSMENT OF DAMAGES. ures as follows: "Memorandum of agreement made and entered into this 21st day of March, 1899, by and between J. T. Lipscomb of the first part and Susan Morris and Rims Vann of the second, witnesseth: "That in consideration of the sum of $1,280.00 evidenced by a negotiable note of even Under section 2297, Ind. T. Ann. St. 1899, date herewith hereby agrees to sell and dein force in the Indian Territory prior to state- liver and does hereby sell and deliver to the hood, the defendant in an action of forcible party of the second part the following deentry and detainer, where he disputed the plain- scribed improvements, together with all the tiff's right of possession, could introduce before the court or jury trying the main issue evi- houses and buildings of every description, dence showing the damage he may have sustain-fences and all other improvements said par 16. "It is further covenanted and agreed that the said J. T. Lipscomb is to retain possession of said improvements until he shall have been fully paid the amount of sale thereof, and is to pay an annual rental of the sum of $320.00, the same to be credited each year on the note given for the purchase price, and said Lipscomb is to continue to have the possession, control, and renting of said improvements until the annual rental herein agreed upon fully discharges the aforesaid note given for the purchase price of said improvements. 1 ty of the second part being a citizen of the he was entitled to possession at the comCreek Nation and entitled to hold said prop- mencement of the suit; admitted that they erty as a part of the allotment of himself, entered into possession in 1901 without plainand family. All improvements on the north- tiff's consent, but denied that they took poseast quarter of section 24, township 16, range session unlawfully or unlawfully detained same, or that they were holding same unlawfully and by force against the rights of plaintiff; denied that they had damaged plaintiff in any sum. They further alleged that in 1901 plaintiff was a citizen of the Creek Nation, and defendant Susan Morris Allen also a citizen of said nation; that during the year plaintiff laid some kind of claim to the premises, although at that time he had in his possession and under his control as much land in the Creek Nation as he was entitled to hold as his approximate share of the lands belonging to said nation, and that of his family; that during said year Susan Morris Allen had appeared before the Dawes Commission and selected the land in dispute as her allotment, received her certificate for same, and immediately went into possession by virtue of said certificate, and remained in possession until taken from her by the officers, and that she had been damaged by being kept out of possession during said time in the sum of $400. The case was tried by the court without the intervention of a jury, and resulted in a finding for the defendants and judgment in their favor in the sum of $501 and costs. new trial was made and overruled, and writ of error sued out, and the cause was pending in the Indian Territory Court of Appeals at the time of Oklahoma's admission into the Union, and came to this court under the terms of the enabling act and the Schedule to the Constitution. "And it is further agreed that the said party of the second part shall have the privilege at the end of any year of paying in full the balance due on said note and of taking possession of the improvements herein conveyed. "Witness our hands the day and year above written. J. T. Lipscomb. "Susan Morris. her "Rims X Vann." Motion for The evidence shows that at the time she signed this contract Susan Morris was an infant, and that Rims Vann, who signed the contract by a mark, was her mother and natural guardian. It further shows that Lipscomb retained possession of the allotment of Susan Morris for the years 1899 and 1900, and received the rents and profits therefrom. Lipscomb testified that: "I rented the place It was decided in Beck et al. v. Jackson et for the year 1901 to a man named James! Johnson. Some time in the fall of 1901, and al., supra, that contracts such as the one enbefore Johnson moved off, the defendants tered into by the parties to this case are void moved onto the place; but I am unable to when executed by an infant or by his natural state exactly what their agreement with guardian, who did not submit himself or his Johnson was." Allen, one of the defendants actions to a court having jurisdiction. Unin error, the husband of Susan Morris, testi- der this view of the law the plaintiff in erfied on that point: "Lipscomb had rented the ror would not be entitled to the possession land to a tenant by the name of James John- of the land under the contract for the purson, and he had sublet it to his uncle, B. chase and sale of the improvements, and that Johnson. In October, 1901, he bought a por- part of the judgment awarding possession tion of the crop raised by B. Johnson, and, thereof to the defendants in error was corwhen B. Johnson moved off the premises, he rect. Indeed, there is no serious contention and his wife moved on the land; James between counsel on this point. Counsel for Johnson did not live on the premises; in plaintiff in error, however, insists that: "I his contract with B. Johnson he only paid this action is without sufficient legal warfor the portion of the crop received, and it rant, the plaintiff's dispossession of the dewas not a part of the consideration that fendants by the writ in this case amounts to Johnson give him possession, but after John- no more than a forcible dispossession of son had moved away he and his wife moved something the plaintiff had a legal right to in." To regain possession of the land Lips-enjoy, and both reason and authority are to comb instituted this suit for unlawful de- the effect that under such circumstances a tainer, and, the defendants being unable to make a retaining bond, possession was delivered to the plaintiff and retained by him during the years 1901 and 1902. The defendants by way of answer denied that the plaintiff was in peaceable possess on in 1901; denied that judgment for costs and nominal damage; was the very utmost that the trial court had any right to assess against him." On this proposition we are unable to agree with counsel. Section 2297, Ind. T. Ann. St. 1899, provides that: "In all cases of forcible entry and de |