Cooke v. Kinkead

This suit is brought to enjoin defendants in error from drilling an oil and gas well on block 9, Howe's Capitol addition to Oklahoma City, on the theory that the restrictive covenants applicable to said block deny such use for the reason that said block was restricted for residential purposes.

Chas. B. Cooke, plaintiff in error, plaintiff below, is the owner of improved property in the addition of which block 9 is a part, and alleges in substance that the defendant Knox B. Garvin is attempting to drill an oil and gas well upon said block and will dig cellars, slush pits, and erect steel boilers with smokestacks and other drilling machinery and equipment for the drilling of said well, and that by doing so will destroy the property of plaintiff and the property generally throughout the platted, restricted area known and designated as Howe's Capitol addition to Oklahoma City, for residential uses and purposes, being the purposes for which said land was laid out, platted, and restricted. It was also alleged that it was the intention of the common dedicators of said property and the common grantor of all said lots and all said blocks in said addition, which lots and blocks were sold, platted, and dedicated, that said property was to be used for residential purposes, and that all of the common grantees of said common grantors purchased said lots with the common and mutual intention and understanding that each and every lot sold by said common grantor should be used and occupied by said grantees for residential purposes and that said plat contains in part the following restrictions:

"Any person or persons hereinafter becoming the owners of any parcel or tract hereby platted, shall take, hold the same subject to the following conditions and restrictions, to wit:

"Third. All buildings in the addition shall be of modern construction and in keeping with the surroundings. No residence north of the alley in block nine (9), shall cost less than four thousand ($4,000) dollars. No residence in the south half of block nine (9), and in the north half of block twelve (12), shall cost less than three thousand five hundred ($3,500) dollars. No residence in any part of the addition shall cost less than two thousand five hundred ($2,500) dollars. The company's agent, H.G. Eastman, shall have power, when making a sale, to increase the restrictions as to costs and to determine type of houses on any building site.

"Fourth. Only one residence shall be erected on any building site in blocks one (1), four (4), five (5), eight (8), nine (9), twelve (12), or nineteen (19), and all owners are required to face their dwellings south on lots facing south and north on lots facing north, but this does not preclude side entrances when desired, and no building in block one (1), four (4), five (5), eight (8), nine (9), twelve (12), or nineteen (19), shall ever be used or occupied except that of residence exclusively and no intoxicating liquors shall ever be manufactured or sold, nor shall any house of prostitution be permitted, in the addition." (C.-M. 5 to 11, inc.)

The original plat also contained in part a provision that, as appurtenant to each residence and to be used only in connection with it, a garage or servant's house, or any other subsidiary building, may be erected on said premises containing a residence.

The matter came on for trial before the district court of Oklahoma county, and plaintiff was denied injunctive relief. Appeal has been perfected to this court. The real controversy is whether the conditions and restrictions contained in the platting of the property inhibit the right of the defendants to proceed under an oil and gas lease with the drilling for oil and gas on block 9 in said addition.

It is the theory of the plaintiff that the restrictive covenants limited the use of the block to residential purposes exclusively, and that this excludes the drilling of an oil and gas well thereon. On the other hand, the defendants contend that the restrictions contained in the platting do not prohibit the drilling of oil and gas wells in said addition even though it is a district of residences. It is also the contention of defendants that the drilling for an oil and gas well is only a temporary use which in no way will defeat the area as one for residential purposes.

In construing the restrictive covenants we must consider the term "building site." "Site" is defined by Hawkins' Mechanical Dictionary, being a cyclopedia of words, terms, phrases, and data used in the mechanical arts, trades and sciences, as follows:

"Site. — A locality or situation; the place whereon any building or collection of buildings has formerly stood, stands, or is intended to stand; the plot of ground where anything is to be built, made or done."

In Stroud's Judicial Dictionary, the term "building site" is defined as follows:

"Building Site. — Building site is land reasonably fit for building on at once. * * *"

In 9 Corpus Juris, 683, "building" is defined as follows:

"Building. A fabric built or constructed; an edifice for any use; an edifice erected by art and fixed on or over the soil, composed of brick, stone, marble, wood, or other proper substance connected together, and designed for use in the position in which it is so fixed. * * *"

Bouvier's Law Dictionary (Rawle's 3d. Rev.) p. 400, defines "building" as follows:

"Building. An edifice, erected by art, and fixed upon or over the soil, composed of brick, marble, wood, or other proper substance, connected together, and designed for use in the position in which it is so fixed. Every building is an accessory to the soil, and is therefore real estate; it belongs to the owner of the soil; Cruise Dig. tit. 1, s. 46; but a building placed on another's land by his permission is the personal estate of the builder; 2 Bla. Com. 17."

Stroud also defines the word "reside" as follows:

"Reside. — 1 15; The words "Residence," and "Place of Abode" (p. 1489), are flexible, and must be construed according to the object and intent of the particular legislation where they may be found. Primarily, they mean, the dwelling and home where a man is supposed usually to live and sleep; they may also include a man's business abode, the place where he is to be found daily (per Gibson, J., R. v. Fermanagh Jus., I. R. 510, 511). v. Resident Magistrate'."

In the case of Board of Education of Orange County v. Forrest et al., 130 S.E. 621, the Supreme Court of North Carolina, in construing a section of the statute which empowered the county board of education to acquire title to suitable sites, said:

"The meaning of the word 'site' as used in the statute is broad enough to embrace such land, not exceeding the statutory limit, as may reasonably be required for the suitable and convenient use of the particular building; the land taken for a playground in conjunction with a school may be as essential as land taken for the schoolhouse itself. 24 Rawle C. L. 582, section 31."

In the case of Myevre v. Liberty Realty Securities Co., Inc., et al., 100 So. 694, the Supreme Court of Louisiana considered the term "building site" and held that it included the entire lot and not merely ground on which the building stood.

It does not appear questioned by the defendants that there was a common plan and purpose to dedicate the land in question for residential purposes. Defendants contend that the restriction, however, does not prevent the drilling of an oil and gas well on the premises in question. The purchasers of the lots in said block and the other blocks in said addition took title subject to the conditions and restrictions which were imposed by the dedicators. The plat provided that except in block 21, no residence in the entire addition should be erected on less than 50 feet of ground fronting on a street running east and west; that the buildings were to be of modern construction and in keeping with the surroundings and that the company's agent had the power when making a sale to increase the restrictions as to the costs and to dictate the type ofhouses on any building site.

The fourth restriction in the amended plat of said block specifically directs and requires that the owners shall face their dwelling south on lots facing south and north on lots facing north. On any building site there must not be erected more than one residence. The building site is the premises itself; the ground. The term "residence" means the dwelling or home where the owner makes his home, and no building under this restriction shall ever be used or occupied except that of residence exclusively, and it is to be observed that there can be no residence on less than 50 feet of ground fronting on a street running east and west. It is obvious that the terms "building" and "residence" are elastic and flexible terms and synonymously used. It cannot be said that this restriction imposes no restriction on the use of the land, not in the liberal sense, but under the rule of strict construction. In fact, very positive restrictions are imposed; the building site can be used for no other purpose than for a residence, and that means that the land itself, not land immediately under the residence, but the building site must be devoted to a residence, a dwelling, a home, if anything is to be erected on said building site in said block. There is and can be no escape from the general plan that no building can be erected on a building site except for residential purposes. There can be no residence without the building site and it is perforce the building site which is completely designated and dedicated and restricted to the use of a residence and it is not the use of the residence which is restricted apart from the building site. The building site is for one residence and nobuilding can be erected upon the building site, or the lot in question, except that such building be used exclusively forresidence purposes. There is no ambiguity in the restrictions nor in the terms which have been used. The intent is plain, and it is obvious that the conditions were imposed upon the use of the tract in question for strictly residential purposes and the land was so dedicated for residential purposes and not for commercial interests or for the drilling of oil and gas wells thereon. Plaintiff and other residential owners purchased their building sites for residential purposes exclusively and plaintiff has a right to rely upon all purchasers complying with those restrictions. The express purpose was to establish a strictly residential district.

To permit the drilling of oil and gas wells against the teeth of these conditions, limitations, and restrictions, would be permitting the erection of oil and gas rigs on the ruins of another's right to protect his property for residential purposes only.

In interpreting plat restrictions, a court of equity, in granting or denying injunctive relief, must look beyond the mere printed restriction and view the attending and surrounding circumstances to ascertain the true intent and purpose of the original grantor in imposing such restrictions.

In the case of Library Neighborhood Association v. Goosen (Mich. 1924) 201 N.E. 219, the Supreme Court of Michigan considered the enjoining of the erection of an apartment building on certain lots in the city of Detroit which involved restriction covering single residences. In that case the court held:

"Court of equity is bound to recognize and enforce mutual reciprocal rights created among purchasers of lots, under building restrictions imposed in pursuance of general building plan."

In the body of the opinion the court said:

"* * * We must look to the surrounding circumstances to discover the intention of the parties and the purpose of the original grantor in imposing the restriction.

" 'In dealing with this subject, equity does not concern itself with the form of the language in which the restriction is couched, but deals only with its substance. It disregards the inquiry whether it is a condition or a covenant, and enforces it when it was plainly intended by the parties that it should be for the benefit of the land held by the plaintiff.' Coughlin v. Barker, 46 Mo. App. 54, cited in note to Korn v. Campbell, 37 L. R. A. (N. S.) 18.

" 'It is always a question of the intention of the parties. * * * In order to make this rule applicable it must appear from the terms of the grant, or from the situation and surrounding circumstances, that it was the intention of the grantor in inserting the restriction to create a servitude or right which should inure to the benefit of the plaintiff's land, and should be annexed to it as an appurtenance.' Beals v. Case,138 Mass. 138.

" 'In cases of this kind it is important to ascertain the purpose of the grantor in imposing the restrictions — whether they are intended for his personal benefit, or for the benefit of the lot owners generally. His intention is to be gathered from his acts and the circumstances.' Hano v. Bigelow,155 Mass. 341, 29 N.E. 628."

The court concludes the opinion with the statement that:

"In our view of the case, the covenant in question, construed in connection with the surrounding circumstances, creates a valid restriction limiting the use of the property in this district to single residences."

In the case of Austin v. Richardson (1926, Texas)278 S.W. 513, the Court of Civil Appeals of Texas held that the courts favor creation of restricted residential districts in cities. In that case an addition was platted and the same was placed on the market for sale with the general plan and intention of making the same an exclusive residential district for private homes only, and expensive private residences were erected, used, occupied, and enjoyed as homes. It was there attempted to convert a residence into an apartment house, which it was contended was in violation of restrictive covenants. In that case the court said:

"2. The courts recognize with favor that people may laudably desire to create restricted residence districts where they may enjoy home life apart from any class of business environments. There are so many arguments in favor of such a reasonable and laudable purpose that we will not undertake any extended discussion thereupon. San Antonions are proud of their beautiful city, its parks, its clean rivers, its beautiful homes and residential and restricted districts, where people desire to come in neighborly contact with others of like tastes, away from the suggestion of business care and commercialism, and where, having finished for the day their downtown busy cares and worries, they may turn to the beauties and delights of the privacy of home life, and the inspiring joys that one enjoys in his private castle, and the law favors them. Wilson v. Gordon (Tex. Civ. App.) 224 S.W. 703; Curlee v. Walker, 112 Tex. 40, 244 S.W. 497; Oliver et al. v. Forney Cotton Oil and Ginning Company (Tex. Civ. App.) 226 S.W. 1094; Bolin v. Tyrol Investment Company, 178 Mo. App. 1, 160 S.W. 588, 164 S.W. 259; Id., 273 Mo. 257, 200 S.W. 1059, L. R. A. 1918-C. 869; Morrison v. Darr (Mo. Sup.) 201 S.W. 1147."

The Supreme Court of Arizona cites a covenant in a deed in which the following restriction was imposed:

"Only one residence shall be erected on any one of said lots." Ainsworth v. Elder, 40 Ariz. 71, 9 P.2d 1007.

That lot was part of a platted addition which had been laid out and platted as a choice and attractive residential district. That court said:

"Most of the early decisions construing covenants restrictive of the use of land have been based on the fundamental theory that an owner of realty was entitled to deal with it as he pleased, and, therefore, any restrictions on its use were most rigidly and strictly construed, and, indeed, the courts frequently exercised considerable ingenuity in limiting their application. As time has gone on, however, it is realized that, especially in a crowded community, the manner of use of one piece of land directly and greatly affects the value and use of adjoining and nearby premises, and the later cases incline towards giving more and more weight to the doctrine of sic utere tuo ut alienum non laedes. For this reason it is now generally held courts should consider not only the strict and technical meaning of the particular words of restriction, but also the surrounding circumstances the general purpose of the restrictions and the manner in which they have been interpreted by the property owners" 9 P.2d at page 1008.

"It is a well known fact of which this court cannot but take judicial notice, that many families desire to own homes for residence purposes which shall be distinct and separate from residences occupied by other families, and that there is a strong and growing tendency everywhere to set aside special districts to be used exclusively for such purposes. The various zoning ordinances being adopted so numerously all over the country recognizes clearly that the old system of two classes only — one for living, the other for business purposes — is insufficient to meet the present situation, and most of these ordinances recognize now four fundamental divisions, to wit, manufacturing and wholesale business; retail business; community residence (which generally includes apartment houses, lodging houses and duplexes), and strictly residence, which is invariably limited to single private dwelling houses, planned for and occupied by one family only. While special situations call for modifications of and exceptions to these classifications, the general principle prevails, and we think it is a commonly known and accepted fact that the term 'residence district' is understood, in the absence of some limitation in the particular case, express or implied, to apply to districts where only single private family residences or dwelling houses are permitted, and that a building in such a district which is intended for and allows occupancy by more than one family is not within the common acceptation of the words 'one residence'." 9 P.2d at page 1009.

The Supreme Court of Tennessee in the case of Laughlin v. Wagner, 146 Tenn, 647, 244 S.W. 475, also considered a restriction which had been inserted in a deed in a tract which had been platted "for residence purposes only."

The grantee owned a vacant restricted lot and contiguous thereto an unrestricted lot on which he operated a drug store. He desired to pave and use the restricted lot for a driveway appurtenant to his drug store. That court held this was in violation of the residential purpose clause and enjoined the grantee from violating the restrictive covenant.

The court said:

"Unquestionably it is an established rule of law that a person owning a body of land may sell portions thereof and make restrictions as to its use for the benefit of himself as well as those to whom he sells other portions of the land, and he may invoke the remedy of injunction to prevent a violation of the same, in proper cases, provided, of course, the restriction is not against some public violation. There is certainly good reason in this rule when applied to the common practice of inserting in deeds a restriction such as tends to create a residential section against those uses which would tend to mar the beauty and detract from the value of the property by uses inconsistent with the uses intended. In such deeds the grantee does not acquire an absolute and unqualified title, but it is a part of the title which he accepts, that the use of the land shall be limited and be restricted in use as provided by the deed. 13 Cyc. 718; 7 Rawle C. L. 1114; Pomeroy's Equity, vol. 2, sec. 1695.

"* * * Another defense is that the growth of the city and development of business in that section has been such as that the enforcement of this restrictive clause would be inequitable. The principle involved in this defense has been recognized by the courts in those cases where the development of the business has had the effect to destroy the very purpose of the restriction, and the proposed use of the property would in no way inure to the benefit of the other property. Delvin on Deeds, sec. 991-C.

"But the facts in this case do not justify the application of that doctrine. It does not appear that there had been such encroachments in the vicinity of this property as that the use of this lot for the purposes aforesaid would not materially affect the value or the use for residential purposes of the remaining portions of the land.

"The restrictive clause in this deed being valid and not contrary to public policy (Devlin on Deeds, sec. 991-B), and enforce able in equity by the original grantor and by property owners who purchased other property from him in the vicinity who hold their property largely under similar restrictive clauses, it remains to apply the rule to the situation shown to exist.

"* * * From this interpretation it follows that the Belvedere side of this lot could not be made use of in such a way as that the manifest purpose would be to serve the business houses adjacent to it, For example, it could not be used as affording an intentional passageway or entrance into the business house.Any structure, whether strictly a house or not, such as aconcrete driveway, which devotes the use of the property to thecarrying on of a business, would be violative of this clause. But the use of the lot for decorative purposes, such as flower beds or as a walkway on the lot itself, would not violate the manifest intent and purpose of this clause.

"In other words, any use of this lot which might be reasonably incident to its use for residential purposes is permissible, but it is not permissible to put the lot into service as an incident to the business houses on the adjacent portion of the lot." (Emphasis ours.)

Berry in Restrictions on Use of Real Property, in section 34, page 52, announces the following rule:

"Sec. 34. Generally. The primary rule for the interpretation of restrictive covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement, but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met. Clark v. Devoe, 124 N.Y. 120, 26 N.E. 275, 21 Am. St. Rep. 652 (1891); Empire Bridge Co. v. Larkin Soap Co.,59 Misc. 46, 109 N.Y.S. 1062 (1908); Jamison v. McCredy, 5 Watts S. (Pa.) 129 (1843)."

Also, in section 37, at page 57, the author states as follows:

"* * * Nevertheless, proper building restrictions and other limitations on the use of property of a character which the law permits to be attached to land, in such a sense as to restrict the use of one parcel thereof in favor of another, will be enforced in a proper case in courts of equity upon equitable grounds in favor of or against the party designed to be benefited or burdened thereby. Scharer v. Pantler,127 Mo. App. 433, 105 S.W. 668 (1907)."

In the case of Bachman et ux. v. Colpaert Realty Corporation et al. (Ind.) 194 N.E. 783, the Appellate Court of Indiana considered a restrictive covenant prohibiting the use of any building which might be erected on the premises for any business or trade, and held that such a covenant must be presumed to include the use of the lot for any prohibited uses so as to make the restriction effective in carrying out the general plan of development. In that case the court held that an examination of the deed in its entirety in the light of facts found by the trial court clearly disclosed an intention on the part of the original owner to carry out a preconceived and established plan of making the addition a desirable residential area. The defendant attempted to erect a filling station, and one of the restrictions was as follows:

"2. That the grantees, their heirs, administrators or assigns shall not use or permit to be used any building which may be erected on said premises for the purpose of a grocery store or any business or trade."

In that case it was contended that the restrictions which prevented the use of any building which might be erected on said premises for any business or trade did not prohibit the erection of any kind of structure for the use of a filling station.

That court, in discussing the use of the lot itself outside a building for gasoline and oil business, held that it would conflict with the general plan of development as much, if not more than the use of a building on the lot for such gasoline and oil business, and that it would deprive the restrictions of all beneficial force. The court on that question said:

"We must presume that the parties to the deed intended that the restriction be effective in carrying out said general plan of development. When we presume that, we must presume that they intended to prohibit the use of the lot, for any of the prohibited uses. Pierce v. St. Louis Union Trust Co., supra; Holderness v. Central States Fin. Corp. (1928) 241 Mich. 604, 217 N.W. 764 Baumert v. Malkin (1923) 235 N.Y. 115, 139 N.E. 210."

That court also quotes with approval the rule as announced in the case of Couch v. Southern Methodist University (Tex. Civ. App. 1926) 290 S.W. 256, 259, concerning the negative equitable easement rule, is follows:

"It may be stated generally that, where a common grantor opens up a tract of land to be sold in lots and blocks, and, before any lots are sold, inaugurates a general scheme of improvement for such entire tract intended to enhance the value of each lot, and each lot, subsequently sold by such grantor, is made subject to such scheme of improvement, there is created and annexed to the entire tract what is termed a negative equitable easement, in which the several purchasers of lots have an interest, and between whom there exists mutuality of covenant and consideration"

— and cites the following cases: Wiegman v. Kusel (1915)270 Ill. 520, 110 N.E. 884; Abbott v. Steigman (1928)263 Mass. 585, 161 N.E. 596; Storey et al. v. Brush (1926) 256 Mass. 101,152 N.E. 225.

In the case of Holderness et al. v. Central States Finance Corporation et al., 241 Mich. 604, 217 N.W. 764, the Supreme Court of Michigan considered an action to restrain certain defendants from violating building restrictions. Uniform building restrictions had been embodied in each conveyance given by the orginal owner of the plat. The restrictions in substance limited the construction of buildings on lots to those for dwelling house purposes. It was the claim of the defendants that the restrictions pertained only to the character of the building that might be erected on any particular site and that such restrictions did not limit the use which might be made of such buildings. The restrictions read in part as follows:

"* * * Except for dwelling house purposes only * * * having at least two stories in height and appurtenant outbuildings or an approved type of bungalow."

The question for determination was whether restriction applied only to the character of the building to be erected on the lot or whether it also controlled the use which might be made of the building. In that case the court said:

"In placing a proper construction upon these restrictions, if there can be said to be any doubt about their exact meaning, we must have in mind the subdivider's intention and purpose. Weiss v. Zack, 237 Mich. 10, 211 N.W. 90. The restrictions in question must be read as a whole and construed in the light of the general plan under which the restrictive district was platted and developed. Tabern v. Gates, 231 Mich. 581,204 N.W. 698. In light of the fact that these restrictions have been uniformly embodied by the subdivider in his conveyance of each lot, and the admission of these defendants that the whole development of the addition has been in conformity to the restrictions, it would be a perversion of the English language to hold that the restrictions applied only as 'building restrictions' and not as restrictions governing the use of the property. It would indeed be useless to provide that 'no structure shall be built on any lot except for dwelling house purposes' and then permit it to be used forthwith as a store or factory. The restriction applicable to the very street on which defendant's property is located is clearly intended to confine it to the better class of residence property, since it limits the character of residences which may be erected thereon to single houses, double houses, duplex or two family flats, and also fixes a minimum cost. In addition to this, we find an express provision that the 'lots fronting on Grand River Avenue may be used for business purposes,' the plain inference being that the lots as to which this provision does not apply shall not be used for business purposes. We are of the opinion that the intention of the subdivider is easily ascertained from the language uniformly used in the instruments by which he conveyed the lots in the subdivision. The restrictions have been enforced, and both the development and use of the property have conformed thereto. The provision must be held to be a restriction controlling the use, as well as the character of building to be erected. Any other construction deprives the provision of all beneficial force and would be a mere evasion. Dorr v. Harrahan, 101 Mass. 531, 3 Am. Rep. 398. Decent regard for the rights of other owners as well as the mandate of law require the defendants to observe the restriction as to the use of their dwelling. The decree of the lower court is affirmed, with costs to the appellee."

It may be difficult to define with exactness a rig for the drilling of an oil and gas well. The modern oil derrick, as we see it from our windows at the State Capitol, constitutes the erection of a steel derrick towering something like 125 feet in the air with its incidental requirements, with footings deeply incased in cement. It stands directly over the point which was staked for the location of the well. The ground is removed under the site of the derrick for a deep and costly "cellar" made of concrete sides, top and bottom with the concrete steps descending to the bottom. If such a construction were erected on the top of the ground, no one could contend that it was not in the nature of a building. In fact, at times a part of the derrick is boxed up or enclosed. The industry has developed a number of words and phrases. "Driller," being the individual who superintends work on the derrick floor of a rotary rig; oftentimes there are four of these men known as firemen or potmen, derrickmen, two floormen and "rig builders." It is the history of the Oklahoma City field that where oil and gas is found the derricks remain, although reduced in height, over the well for a long period of time. Oil was discovered in the Oklahoma City field in 1928; the derricks still stand; the cellar pits are there; and the derrick floors are there. The terms "boilerhouse," "derrick floors," "rig builders," "pits and cellars," indicate something in the nature of a building, or which calls for a building, placed over the location where the well is to be drilled. Certainly it seems that if the right is given to erect a derrick and place thereon pipes, tanks, boilers, etc., on a lot for the use of drilling, then the corresponding right can be demanded to protect this property by the erection of buildings or houses to cover the same, and if that is done, it is manifestly a violation of the spirit, intent, purpose, and plain wording of the restrictions. But it seems unnecessary to adopt this fine distinction. The restrictions themselves are sufficient to prohibit the drilling of an oil and gas well on the premises in question.

Such structures, rigs, cellars, derrick floors, boilerhouses, may be of modern construction, many times in excess of the cost of these residences, but they are not in keeping with the surroundings as required by the plat restrictions. What are the surroundings? The answer is admitted, and direct — sites, which have been used and are now being used for residential building sites imposed by plat restrictions for residential purposes. The block in question was burdened with that direct and positive restriction. No one at this late day could be misled as to the general appearance and character of this tract, and the nature of the homes which have been erected; that general appearance is sought to be set aside and disregarded by the defendants. All of there facts ought to indicate the general restrictive character of the tract in question to any one seeking an interest therein, and be strong constructive notice that the grantors and grantees sold and purchased with a dominant purpose for the common benefit of each that the building sites should never be, used or occupied except for that of residence exclusively. The fact that the property may have become valuable for oil and gas purposes is immaterial unless the property is no longer considered residence property. That condition does not prevail, for the platted area has been devoted to residential purposes, and the "call of Mammon makes no appeal to equity." Ludgale v. Somerville (Ore.) 256 P. 1045; Miles v. Clark (Hollingsworth) (Cal.App.) 187 P. 171.

To permit defendant to drill an oil and gas well on the block in question would be putting the lot into a service and use entirely inconsistent with residential purposes, and the residential restriction would be deprived of all beneficial force. The defendant comes into a court of equity. He sees that the area was developed as a residential district, a choice section of Oklahoma City, and now seeks to subvert the character of a residential building site to a site for a commercial enterprise through strict and technical interpretations of restrictions without regard to a view of all the circumstances which brought about the development of this residential district. To my mind it is like the Supreme Court of Michigan said in the Holderness Case, supra, "a perversion of the English language" to hold that the restrictions do not apply to the drilling of an oil and gas well. Such a contention makes no appeal to my equitable conscience.

For the foregoing reasons, I respectfully dissent.

I am authorized to state that Mr. Justice BAYLESS and Mr. Justice GIBSON concur in this dissent.