Magnolia Petroleum Co. v. Drauver

• Decision Date: 25 October 1938
• Docket Number: Case Number: 27980
• Citation: Magnolia Petroleum Co. v. Drauver, 83 P.2d 840, 183 Okla. 579, 1938 OK 545 (Okla. 1938)
• Parties: Magnolia Petroleum Co. v. Drauver
• Court: Oklahoma Supreme Court

1938 OK 545

83 P.2d 840

183 Okla. 579

Magnolia Petroleum Co. v. Drauver

Case Number: 27980

Supreme Court of Oklahoma

Decided: October 25, 1938

Syllabus by the Court.

¶0 1. COVENANTS--Dedicatory Restriction on Townsite Lots to Use for Private Residences held Valid and Enforceable by Owners Inter Sese.

A restriction contained in the plat and dedication of a townsite in words as follows: "No building shall ever be used or occupied for any purpose except for that of private residence exclusively, nor shall any part or portion thereof ever be used for business or trade of any kind whatsoever," is not repugnant to positive law, and is intended to redound to the mutual benefit and profit of the purchasers of the lots, and such a restriction is ordinarily enforceable by the owners inter sese.

2. SAME--Foreclosure of Mortgage on Unsold Lots not Effective to Destroy Restrictions on Lots Sold and Released From Mortgage.

Where land subject to mortgage is platted and dedicated for townsite purposes, and certain lots are thereafter sold and the mortgage thereon released, subsequent foreclosure of said mortgage upon the lots remaining unsold will not destroy and render inoperative valid restrictions contained in the dedication, in the absence of some circumstance from which it may clearly appear that the restrictions have been renounced or abandoned by the owners of such lots to that degree where the enforcement thereof by the owners inter sese would be inequitable, or that a substantial change of conditions has intervened.

3. SAME--Judgment Enjoining Erection of Automobile Service Station on Restricted Lots Sustained.

Record examined, held: Judgment of the trial court enforcing plat and dedication restrictions by the owners inter sese is not against the clear weight of the evidence.

Appeal from District Court, Oklahoma County; G. H. Giddings, Jr., Judge.

Action by P. D. Drauver and others against the Magnolia Petroleum Company to restrain the defendant from erecting an automobile service station in violation of restrictions contained in plat and dedication of addition. From a judgment granting a permanent injunction, the defendant appeals.

Affirmed.

Blakeney, Wallace, Brown & Blakeney and Everest, McKenzie & Gibbens, all of Oklahoma City, for plaintiff in error.

T. F. Weiss and Jarman, Brown, Looney & Watts, all of Oklahoma City, for defendants in error.

GIBSON, Justice.

¶1 This action was commenced in the district court of Oklahoma county by the defendants in error to restrain plaintiff in error from erecting an automobile service station in Crestwood Addition to Oklahoma City as a violation of the restrictions contained in the plat and dedication of said addition. From a judgment granting permanent injunction this appeal is taken. The parties will be referred to in the order of their appearance at the trial.

¶2 The premises owned by defendant and particularly involved here are described as Lots 33, 34, 35 and 36, Block 18, Crestwood Addition to Oklahoma City. These lots comprise a portion of a quarter section of land described as the Northwest quarter of Section 30, Township 12 North, Range 3 West. In the year 1910 this land was owned by B. D. Jones and others, who by warranty deed conveyed the same to Oklahoma City Investment Company. That company executed a mortgage to Jones and his cograntors. Thereafter said company executed a deed to the Ellis Place Investment Company, and the latter thereupon platted and dedicated the entire quarter section as Ellis Place Addition. This plat and dedication were filed for record September 24, 1910.

¶3 Numerous lots in that addition were thereafter sold to different parties, and the mortgage thereon held by Jones and his associates as aforesaid released so far as the same affected the property sold. All of Block 18, of which defendant's lots are a part, together with certain other entire blocks and other lots were thus sold and the mortgage released thereon. The aforesaid mortgagees later foreclosed the mortgage and, in the year 1914, received a sheriff's deed in due course conveying to them the entire quarter section, less the lots theretofore sold.

¶4 The dedication of Ellis Place Addition contained the following restriction: "No building shall ever be used or occupied for any purpose except for that of private residence exclusively, nor shall any part or portion thereof ever be used for business or trade of any kind whatsoever."

¶5 Certain lots are therein excepted from the operation of the restriction, but Block 18 is not included in such exception.

¶6 Subsequent to the execution of the above mentioned sheriff's deed a number of plats and dedications purporting to include this entire quarter section were filed by the owners or purported owners thereof, each assuming to replat and rededicate the land as an addition under a different name. The last thereof was Crestwood Addition.

¶7 It appears, however, that the lots sold under the original plat of Ellis Place were carried along in these subsequent plats under their original lot and block numbers, the original area thereof remaining undisturbed. While some of these later plats and dedications purported to include Block 18, neither the original grantees of the lots therein nor their grantees have ever released the former restrictions, nor have they committed any act of rededication inconsistent with said restrictions. Some, if not all, of the plaintiffs in this action are grantees of the original purchasers of lots in Block 18 of Ellis Place Addition.

¶8 Large portions of the briefs are devoted to argument concerning the effect of these later plats and dedications but, as we view the matter, that question is not material to a determination of the issues here involved.

¶9 In its assignments of error defendant charges that the judgment of the trial court is contrary to law and not supported by the evidence.

¶10 We agree with defendant's first proposition as stated, that as a fundamental principle of law of real property, restrictions on the alienation and use of land are not favored, and all doubt should be resolved in favor of the free use of property. 18 C.J. 385, 7 R.C.L. 1115; Test Oil Co. v. La Tourette, 19 Okl. 214, 91 P. 1025; Vaughn v. Lyon, 122 Okl. 179, 252 P. 1088; Cooke v. Kinkead, 179 Okl. 147, 64 P.2d 682; sec. 9698, O.S.1931, 16 Okl.St.Ann. § 29. Every estate in land granted by deed is deemed an estate in fee simple, unless limited by express words. Sec. 9698, supra; and, in view of that statute, we held in Cooke v. Kinkead, above, as follows: "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."

¶11 The rule so announced was applied in that case to restrictions contained in a plat and dedication limiting the use of the property therein described.

¶12 But, if restrictions in a dedication of a townsite are clearly expressed, and are not repugnant to positive law, they are binding upon all parties purchasing the land. However, it should be remembered and taken into account that such restrictions as here considered are not intended wholly to deprive the grantees of some specified beneficial use of the property, but are intended primarily to redound to the mutual benefit and profit of the owners of the land. Southwest Petroleum Co. v. Logan, 180 Okl. 477, 71 P.2d 759. Restrictions of the character here considered could be meant for nothing other than for the common benefit of the purchasers of the lots. The...