Devendorf v. Akbar Petroleum Corp., 13800
| Decision Date | 17 May 1989 |
| Docket Number | No. 13800,13800 |
| Citation | 62 Ohio App.3d 842,577 N.E.2d 707 |
| Parties | DEVENDORF et al., Appellants, v. AKBAR PETROLEUM CORPORATION et al., Appellees. |
| Court | Ohio Court of Appeals |
Joan A. Devendorf, Akron, for appellants.
John N. Teeple, Alliance, for appellees.
This cause came before the court upon the appeal of David S. and Joan Devendorf from the portion of the trial court's order refusing to enjoin the use of an area which included five lots subject to restrictive covenants for the purpose of establishing the minimum acreage requirements for oil well drilling.
David and Joan Devendorf own a tract of land situated in Lot 54 of Bath Township. Their land is part of a forty-acre unplatted residential tract which was originally conveyed as a single parcel in a 1949 deed. This deed contained the following language:
" * * * [A]s a part of the consideration for this conveyance and for the protection of the grantor it is agreed as covenants running with the land that the grantees, their heirs and assigns shall use the premises hereby conveyed solely for private residence and agricultural purposes and that no commercial or industrial business shall be conducted thereon. * * * "
The deed by which the Devendorfs received their property referred to the restriction contained in the earlier deed but did not itself contain any restrictions. The Devendorfs' property is situated just outside an area that is being developed for oil and gas drilling.
William Tipka, a gas and oil developer, executed oil and gas leases with various landowners whose lots adjoin the Devendorfs' property in order to attain the proper acreage necessary for drilling purposes. Tipka executed an oil and gas lease with Richard and Jean Griffith in order that a well could be located on the lot designated as Griffith Lot 1. Griffith Lot 1 was not subject to any use restrictions. The other two lots owned by the Griffiths, Lots 2 and 3, were also covered by the lease even though no actual drilling would be conducted on them. Griffith Lots 2 and 3 were subject to the following restriction:
The two lots were originally part of the same forty-acre tract which also included the Devendorfs' lot.
Tipka procured a nondrilling oil and gas lease from Akbar Consulting Corp., which owned Akbar Lots 1 and 2. The two lots were located in the forty-acre residentially restricted tract. The deeds to these lots contain the following restrictions:
While no drilling was permitted on the land, a buried transportation pipeline could be constructed under the property. As was the case with the other lessors, Akbar would receive a one-eighth royalty.
Tipka entered into another oil and gas leasing arrangement with Leonard A. Keller who owned property designated as the Keller Lot. The deed used the same restrictive language employed in the deeds for Akbar Lots 1 and 2. Tipka received oil and gas leases from three other landowners who are not the subject of this appeal. All of the leases contained pooling clauses which authorize Tipka to combine the leased properties for purposes of creating an operating unit. Most of the leases provided that the lessor would also have free use of oil or gas extracted from the well. To comply with state-mandated minimum acreage requirements, Tipka consolidated the leased properties. Under the consolidation agreement, the leased lands were considered a single tract of land for drilling purposes and "a well commenced upon any of the lands herein consolidated shall have the same effect as though such well were commenced upon the premises described in each such oil and gas lease."
The Devendorfs filed a complaint seeking to enjoin Tipka, Keller, Akbar Consulting and the Griffiths from using the land for oil and gas drilling. The Devendorfs also sought a declaration of the applicability of the residential restrictions to the leased properties. Both parties moved for summary judgment. The trial court granted summary judgment for the defendants. On appeal, this court determined that the Devendorfs had standing to contest the formation of the drilling unit. We remanded the case to determine the effect of the use restrictions on the lease agreements.
Upon remand, the trial court found that the residential use restrictions contained in the deeds to Akbar Lots 1 and 2, the Keller Lot and Griffith Lots 2 and 3 banned any use of those lots for oil and gas drilling. The court went on, however, to conclude that " * * * mere unitization of said property for the purpose of meeting the minimum acreage requirement is not a violation of any restrictive covenant."
The Devendorfs appeal that aspect of the trial court's order which permitted the utilization of those lots which were encumbered with residential use restrictions.
The Devendorfs contend that the trial court erred when it refused their request to enjoin the formation of the oil and gas drilling unit composed of those properties which were subject to residential use restrictions. We agree.
A present owner of a lot subject to a restriction has the right to enforce the same or similar restrictions imposed upon the other lots by a common grantor, for there could be no purpose in writing such restrictions in the deeds if any subsequent grantee could disregard the restriction and devote the property to a prohibited use. Wallace...
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