40 F.2d 161 (10th Cir. 1930), 183-190, Magnolia Petroleum Co. v. Suits

Docket Nº:183-190.
Citation:40 F.2d 161
Party Name:MAGNOLIA PETROLEUM CO. v. SUITS et al. FYKE et al. v. MAGNOLIA PETROLEUM CO. et al.
Case Date:April 04, 1930
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 161

40 F.2d 161 (10th Cir. 1930)

MAGNOLIA PETROLEUM CO.

v.

SUITS et al.

FYKE et al.

v.

MAGNOLIA PETROLEUM CO. et al.

Nos. 183-190.

United States Court of Appeals, Tenth Circuit.

April 4, 1930

Rehearing Denied May 14, 1930.

B. B. Blakeney, of Oklahoma City, Okl. (W. H. Francis, of Dallas, Tex., and Hubert Ambrister, of Oklahoma City, Okl., on the brief), for complainant.

J. H. Jarman and J. B. Dudley, both of Oklahoma City, Okl. (J. B. Allen, J. H. Everest, Fred E. Suits, and Wilbur J. Holleman, all of Oklahoma City, Okl., on the brief), for respondents.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

LEWIS, Circuit Judge.

This suit was brought by Magnolia Petroleum Company, a Texas corporation, to enjoin Suits and Holleman, lessees of the Union Missionary Baptist Church, from drilling an oil and gas well on a plot of ground, 180 feet by 302 1/2 feet, in the northwest corner of a 40-acre tract in Pottawatomie County, Oklahoma, and from producing and taking oil and gas through the well. The bill was dismissed on final hearing and plaintiff has appealed. There is no controversy about the facts. Laura L. Fyke and her husband owned the 40 acres and adjoining lands. In June, 1922, they gave an oil and gas lease on these lands, including the forty, to the Magnolia Company. That company has producing wells on the 40 acres. One of them is 330 feet from the plot of ground above described. In February, 1912, the Fykes conveyed said plot by warranty deed to the church. The deed contains this paragraph:

'This deed is made expressly upon the condition that the said premises herein granted are to be used exclusively for a site for the erection and maintenance of a church building for the said Union Missionary Baptist Church, and whenever the same shall hereafter cease to be used for such purpose, this deed shall become void and the title to the said premises shall revert to the grantors herein, their heirs and assigns.'

The church erected a building on the site and it has ever since used it for church purposes.

We are not concerned with the latter part of the paragraph, that part after the word 'Church,' which deals with forfeiture. It is not claimed that the church has forfeited its title. That question is not in this case. This is a suit in equity by the grantors' lessee to protect its claimed rights as lessee by enforcing the restricted use of the church site, as provided in the deed, that is, that part of the paragraph down to and including the word 'Church.'

It is the contention of the Church and its lessees that the former took the fee, determinable though it be on condition subsequent, which is inconsistent with restricted use, that the fee vests unlimited dominion. The trial court so ruled and held that plaintiff was not entitled to equitable relief. We think it erred. From an early date equity has enforced restrictions on use in favor of the grantor and his assigns, if damaged by additional use, against the grantee and his assigns with notice, no matter what the title taken by...

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