Acheson v. Stevenson

• Decision Date: 06 January 1890
• Docket Number: 215
• Citation: 130 Pa. 633,18 A. 873
• Parties: A. W. ACHESON v. M. H. STEVENSON ET. AL
• Court: Pennsylvania Supreme Court

18 A. 873

130 Pa. 633

A. W. ACHESON v. M. H. STEVENSON ET. AL

No. 215

Supreme Court of Pennsylvania

January 6, 1890

Argued October 23, 1889

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, IN EQUITY.

No. 215 October Term 1889, Sup. Ct.; court below, No. 606, C.P. in equity.

On August 15, 1889, a bill in equity was filed by A. W. Acheson against M. H. Stevenson, J. Adolph Schmitz, Effie B. Schmitz John Burns and James M. Hughes, which averred, in substance:

1, 2. That on June 21, 1887, the plaintiff sold and conveyed to Mrs. Effie B. Schmitz a lot of ground fronting 60 feet on Prospect avenue and extending back 198 feet to a private alley, which alley for its whole length adjoined other lands still owned by the plaintiff, the conveyance containing the following habendum: "To have and to hold the said premises, with all and singular the appurtenances, unto the said party of the second part, her heirs or assigns, to the only proper use, benefit and behoof of the said party of the second part, her heirs and assigns forever. Without, however the right to drill or mine for petroleum, rock oil, carbon oil, or natural gas, which right is not intended to be conveyed but is forbidden to both parties hereto." A copy of said conveyance was attached as a part of the bill and marked exhibit A.

3. That since executing and delivering the said deed, the plaintiff had executed and delivered to Gibson & Giles an oil-and gas-lease on an out-lot near the lot described in the preceding paragraph, containing about four or five acres upon which said Gibson & Giles had completed an oil-well which was producing oil in large quantities.

4. That the defendants, with full knowledge and notice of the restriction contained in said deed to Mrs. Effie B. Schmitz, against the protest of the plaintiff, and in violation of the restriction in said deed, were proceeding to drill an oil- or gas-well within 30 feet of the lands of the plaintiff and within 200 feet of the well mentioned in paragraph 3 of the bill.

Upon the foregoing averments the plaintiff prayed for relief: 1. That the defendants make answer. 2. That they make full disclosure of all parties interested in the operations complained of. 3. That by preliminary and thereafter by perpetual injunction the defendants, etc., be restrained and enjoined from proceeding to drill or mine for oil or gas in or upon the premises described in the bill. 4. For an account. 5. For further relief.

At the hearing of the motion for a preliminary injunction, on August 21, 1889, affidavits were read by the plaintiff and by the defendants, and on August 28th, the court, McILVAINE, P.J., filed the following opinion and decree:

The plaintiff's right to a preliminary injunction in this case depends on three things, to wit: 1. On the existence and character of the restriction contained in his deed to Mrs. Effie B. Schmitz. 2. On the violation by the defendants of the provisions of that restriction, and 3. On the question whether the plaintiff "by his own conduct has deprived himself of the right to equitable interference for the prevention of the breach of the restriction contained in this deed."

Let it be conceded, as we think it must be, that the words, "Without, however, the right to drill or mine for petroleum, rock oil, carbon oil, or natural gas, which right is not intended to be conveyed but is forbidden to both parties hereto," as found in the habendum of the plaintiff's deed to Mrs. Schmitz, constitute a lawful restriction, and that the defendants have no right under this deed to drill an oil- or gas-well on the premises therein conveyed; and let it also be further conceded, as it must be, that the defendants are engaged in drilling such a well on the lot in question, still the plaintiff cannot invoke the aid of a court of equity, and successfully ask that the defendants be enjoined from so doing, unless it appear that he has carried out his part of the contract or agreement which resulted in placing the restriction upon the use and enjoyment of the lot conveyed. And here is where the contest in this case arises. As to the purpose of this restriction, or why it was inserted in the deed, the deed itself is silent. And we must turn to the affidavits which were read at the hearing, for information on this branch of the case.

From the affidavits of the plaintiff it appears that, some time ago, he laid out a plan of lots to be known as the "Acheson Addition" to the borough of Washington; that the lot in question is in this addition; that the clause in Mrs. Schmitz's deed, which we have quoted, was intended as a reservation of the oil and natural gas; that in the sale of the lots in this addition it was always his intention to reserve the oil and gas, and that he in no way bound himself not to mine the oil under these lots by locating wells on ground which was not properly a part of the addition.

The defendants claim that the clause in the deed referred to was not intended as a reservation of the oil and gas, but as a restriction to be placed in all the deeds for the benefit of all the lot-holders in the addition, the object being to secure to them dwelling places free from the annoyance of oil- and gas-wells, or, as Prof. Schmitz poetically expresses it, "a quiet rural retreat." We quote from the affidavits filed by the defendants in support of this claim:

Prof. Henry Woods, who purchased one of these lots, avers "that the judge told him, when the restriction was put in his deed, that the object of it was to protect the lot-holders against the drilling of oil- or gas-wells;" says he, "we want this for a nice, quiet place for residence."

Prof. W. C. McClelland avers that when he received his deed it was explained to him, "that the covenant was not intended as a reservation of the oil and gas, for they did not believe there was any oil or gas there; but that it was intended for the mutual protection of lot-holders against each other; . . . both Mark and the judge told me that no well would be put down on the addition."

M. H. Stevenson, Esq., avers that the plaintiff said to him, when he accepted his deed, "that the covenant against drilling was for mutual protection of the lot owners against each other, and that he would not sell any lots in the addition without having it in the deed. He also mentioned the fact that he lived out there himself, and that he would not have any well around there anywhere."

T. F. Birch, Esq., avers that when he bought a lot from the plaintiff "he explained that they wanted that neighborhood for a quiet place of residence, and that there were to be no wells drilled around there; that the restriction was for the mutual protection of the lot owners, and to protect them from the annoyance of oil- and gas-wells. The Achesons owned other lots there, and I understood that they were no more at liberty to drill than anybody else."

Prof. Adolph Schmitz avers that the plaintiff told him, when he agreed to the restriction in his wife's deed, "that he wanted the restriction in all the deeds in this addition; that he did not want any oil-wells in that neighborhood; he wanted this for a quiet residence place and he would not have any oil-wells around there anywhere."

Mrs. Effie B. Schmitz says, "my husband attended to the purchase of my lot. While we were building our house the judge was over, and the oil business came up some way in conversation. He waved his hand toward the mansion place where the Rev. Hamilton lives, and said that he would not have any wells out there at all; he would not be bothered with the annoyance."

Ges B. Darrah avers that, "in answer to his objection to the restriction in his deed, he (M. C. Acheson, Esq.), in the presence of the plaintiff, said that they had laid that land out into building lots and wanted this neighborhood for a nice, quiet place of residence; that this restriction was intended for mutual protection and would be in all the deeds; 'of course you do not want anybody to drill so as to annoy you, and so you must be bound not to drill so as to annoy us.' He explained that the restriction was not intended for a reservation of the oil and gas, for, says he, the right is forbidden to either party, but that it was merely intended for the protection of people who might own lots in that addition." Mr. Darrah further avers, "that he saw the plot of the addition; that it extends from Mark Acheson's house clear around the road to the property of Rev. Ross Stevenson. The mansion house, or Hamilton lot, was included in the plot just the same as any other lot, and the judge told me that he had offered it for sale. Both the wells back by Hamilton's house are on the addition, as it was when shown to me, and are a violation of the representations on which they got me to accept the restriction."

From these affidavits the defendants claim, as we have already said, that when the plaintiff put the lots in Acheson's Addition in the market, he made it a general condition in the sale thereof that no wells would or should be drilled on the lots in the addition for oil or gas, the object being to secure a building site that would attract those who preferred a residence in "a quiet rural retreat," rather than the ownership of a lot where they and their neighbors could engage in the business of drilling oil-wells; in other words that he dedicated and disposed of these lots solely for building purposes, and that he has violated this general agreement made with the purchasers of those lots by drilling two wells on the Hamilton lot, which is in the addition, and by drilling a well on the Gibson & Giles lot which is in the immediate neighborhood; that he has done the thing, the effect of doing which has destroyed those very advantages which...