Cooke v. Kinkead
| Decision Date | 01 December 1936 |
| Docket Number | Case Number: 27459 |
| Citation | 179 Okla. 147,1936 OK 744,64 P.2d 682 |
| Parties | COOKE v. KINKEAD |
| Court | Oklahoma Supreme Court |
¶0 1. DEEDS - Estate Granted Presumed Estate in Fee Simple - Statute.
Every estate in land granted by deed shall be deemed an estate in fee simple, unless limited by express words. (Section 9698, O. S. 1931.)
2. COVENANTS - Covenants Limiting Use of Realty Strictly Construed.
Covenants limiting the use of property must be construed strictly and not extended by implication.
3. SAME - Restrictions on Use of Property not Extended by Implication.
Restrictions on the use of property, being in derogation of the fee conveyed, will not be extended by implication to include anything not clearly expressed.
4. SAME - Covenant in Plat Restrictions Upon Certain Lots in Addition to Oklahoma City Held not to Prohibit Drilling for Oil and Gas.
A restrictive covenant contained in plat restrictions upon certain lots in Howe's Capitol addition to the city of Oklahoma City, providing that "no building shall ever be used or occupied except for that of residence exclusively," does not prohibit the drilling of a well for oil and gas upon said lots.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Injunction by Charles B. Cooke against John B. Kinkead and others. Judgment for defendants, and plaintiff appeals. Affirmed.
Shirk, Danner & Earnheart, Charles Swindall, and J.H. Jarman, for plaintiff in error.
Abernathy & Howell and C.H. Hale, for defendants in error.
¶1 This action was instituted in the district court of Oklahoma county by Charles B. Cooke, hereinafter referred to as plaintiff, against John B. Kinkead, and numerous other defendants, including Knox L. Garvin, in which it was sought to enjoin and restrain said Knox L. Garvin from drilling and exploring for oil and gas upon block 9, Howe's Capitol addition to Oklahoma City, or from assigning his lease to any other person, firm, or corporation, and to enjoin the other defendants as property owners in said block from placing any oil and gas leases on record in the office of the county clerk of Oklahoma county. Injunctive relief was denied by the trial court, and plaintiff has appealed.
¶2 Plaintiff alleges that he is the owner and in possession of the west 52 1/2 feet of lot 10 in block 1 in Howe's Capitol addition to Oklahoma City, upon which he has erected valuable improvements in compliance with the plat restrictions and covenants of said addition; that various defendants named in the petition are the owners of real estate in block 9, of said addition; that said defendants have leased the lots owned by them in said block 9 to the defendant Knox L. Garvin for the purpose of drilling and exploring for oil and gas. It is alleged that the defendant Knox L. Garvin, unless enjoined, will go upon said premises, with the permission of the respective owners of the lots, dig cellars and slush pits and erect boilers with smokestacks, install steam engines and drilling machinery and equipment and drill an oil and gas well thereon and will erect thereon storage tanks therefor and lay pipe lines under, through, and across the streets and alleys, and that noises and noxious and vexatious odors from said operations and oil and gas wells and the carrying on of said operations will destroy the property of plaintiff and the property generally throughout said platted area for residential uses and purposes, being the purpose for which said land was laid out and platted and restricted. It is to be noted that the property of plaintiff is located in block I of said addition, whereas the proposed operation relates to block 9 of said addition, and by reference to the recorded plat it appears that the property of plaintiff is located some four blocks distant from said operations.
¶3 Plaintiff alleged in his petition, and asserts in his argument herein, that on January 18, 1919, a plat of various blocks of said addition was filed by the then owners thereof containing, among others, the following restrictions:
¶4 Plaintiff alleged and asserts herein that said Capitol addition, for more than 10 years, has been built up and improved as a residential district in substantial compliance with said plat restrictions, and that the drilling of an oil and gas well on block 9 would materially and substantially damage all of said property and practically destroy the same, for residential purposes, and that the owners of property in said addition have long acquiesced in a common plan and scheme of occupying and using said property for residential purposes, and that the owners thereof, and their grantees, are in equity estopped to deny the uses and purposes for which such property has long been used and is useful, and that the drilling of an oil and gas well is contrary to the express and implied restrictions set forth in said plat when construed in connection with such common plan and scheme.
¶5 Defendants assert that the restrictions contained in said plat do not prohibit the drilling of an oil and gas well; that at the time of the platting of said lands oil had not been discovered in their vicinity and that conditions have materially changed affecting the use of said area; that many oil and gas wells have been drilled and are being drilled in territory surrounding said addition; that the existence of a large pool of oil and gas has been discovered under said property and by reason of the migratory and fugacious nature of oil and gas, the same will be drained from under said property and the owners thereof will suffer heavy and irreparable loss and damage if plaintiff is granted injunctive relief.
¶6 It may be said at the outset that it is expressly conceded by the parties no question of nuisance is involved herein. Plaintiff also takes the position that in order to obtain the relief sought, while no direct pecuniary loss or damage will arise proximately from the operations by reason of the distance thereof from plaintiff's property, it is not necessary to show that he will sustain a pecuniary loss by the drilling of a well for oil and gas on block 9. The sole question, therefore, for our consideration in this case is whether or not drilling for oil and gas is prohibited by the plat restrictions which are hereinabove quoted.
¶7 The first proposition relied upon by plaintiff in support of his view is as follows:
"The dedication of an addition containing expressed restrictive covenants that uses be limited to residences exclusively, coupled with such circumstances surrounding the act of platting an area into blocks and lots that uses were intended to be thus limited, creates such a uniform plan and scheme as to development and the uses to which the property can be put, that no owner of lots in the addition can lawfully use the same for purposes other than the ones permitted."
¶8 In support of said proposition it is argued that in construing plat restrictions the entire document must be considered in order to determine, if possible, the intent of the dedicators, citing Bachman v. Colpaert Realty Corp. (Ind.) 194 N.E. 783. In this connection our attention is directed to various provisions found in the restrictions. The contention is that all of the language, when considered together, shows an intent on the part of the dedicators to restrict not only the use of the buildings, but the use of the land itself. It is further argued that we must take into consideration the circumstances surrounding the platting, and in this connection our attention is directed to the language contained in restrictive covenants as applicable to various other contiguous additions. The language used in some of the restrictive covenants in adjacent subdivisions is "no part of the land herein platted shall be used for other than residential purposes." In support of the proposition that we must give due effect to the circumstances surrounding the platting and the fact that the subdivision and surrounding territory has been built up as an exclusive residence district, we are cited to the cases of Library Neighborhood Association v. Goosen (Mich.) 201 N.W. 219; Melson v. Ormsby (Iowa) 151 N.W. 817, and DeLanley v. Van Ness, 193 N.C. 721, 138 S.E. 28.
¶9 Plaintiff contends that the only natural and plausible construction to be placed upon the language "and no building * * * shall ever be used or occupied except for that of residence exclusively," in view of the facts and circumstances in this case, is that no lot should ever be used or occupied except for that of residence exclusively. The argument of plaintiff and the authorities cited are not strictly applicable to the exact point at issue in this case. There are other legal principles involved to which we must give due consideration. We must give full force and effect to the provisions of section 9698, O. S. 1931, which provides as follows:
"Every estate in land which shall be granted, conveyed or demised by deed or will, shall be deemed an estate in fee simple and of inheritance, unless limited by express words."
¶10 In line with the legislative policy of construction declared by this provision of the statutes the...
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Case v. Morrisette
... ... Kimball, 291 Mich. 455, 289 N.W. 213, 215 (1939); Single v. Whitmore, 307 N.Y. 575, 122 N.E.2d 918, 922 (1954); Cooke v. Kinkead, 179 Okla. 147, 64 P.2d 682, 684-686 (1936); Satterthwait v. Gibbs, 288 Pa. 428, 135 A. 862, 863-864 (1927) ... 79 ... ...
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Reed v. Williamson, 34065
... ... Nichols, 113 [164 Neb. 110] Neb. 389, 203 N.W. 558; 26 C.J.S., Deeds, § 164(3), p. 1114; Annotation, 175 A.L.R. 1191 ... Cooke v. Kinkead, 179 Okl. 147, 64 P.2d 682, 685, is characterized by appellants as a case directly in point with the one now under consideration. The ... ...
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Martin v. Weinberg, 19
... ... Cf. Granger v. Boulls, 21 Wash.2d 597, 152 P.2d 325, 155 A.L.R. 523 and Cooke v. Kinkead, 179 Okl. 147, 64 P.2d 682 (a five to four decision). On the other hand, in the case of Hoover v. Waggoman, 52 N.M. 371, 199 P.2d 991 the ... ...