Cooke v. Kinkead

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.

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.

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:

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

"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 blocks one (1), four (4), five (5), eight (8), nine (9), twelve (12), or nineteen, shall ever be used or occupied except for 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."

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.

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.

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.

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."

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 theuse 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.

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."

In line with the legislative policy of construction declared by this provision of the statutes the authorities hereinafter quoted are pertinent and applicable.

"Where the language of a covenant is unambiguous, clear, and specific, the rule is similar to that adopted in the construction of statutes, that no room is left either for interpretation or construction." Lynch v. Commercial Casualty Ins. Co. (N.J.) 108 A. 188.

"The parties being deemed capable of expressing such contract as they desire to enter into, it is not the province of the courts, through the doctrine of implied covenants, to make a contract for them, but to effectuate the purpose of the contract they actually made." Wagoner Oil Gas Co. v. Marlow,137 Okla. 116, 278 P. 294.

"If the words convey a definite meaning, involving no absurdity or contradiction of other parts of the instrument, then that meaning apparent on the face of the instrument must be accepted, and the courts have no right to add to it or take from it." Makins v. Shellenbarger, 144 Okla. 58, 289 P. 716.

"Parties to a contract in writing are presumed to understand the plain provisions of their contract, and in the absence of fraud, mistake, or ambiguity, this court cannot read something into the contract that the parties themselves did not place therein. The rule is that competent parties make their own contracts and the courts will not make contracts for them, but will only enforce contracts which they themselves have made." Autry v. First Nat. Bank et al., 131 Okla. 279, 269 P. 286.

"If the language of a contract is such as to clearly show the intent of the parties, then there is no need to apply any technical rules of construction; for where there is no doubt, there is no room for construction." Romans v. Shannon,80 Okla. 199, 195 P. 298.

"Where the agreement between parties is reduced to writing and mutually signed, and where the consideration agreed upon is expressed in unequivocal language which is free from ambiguity, the obligee in the contract is estopped to insist upon a strained and unnatural construction of the language used in order to import a consideration more favorable to himself than that plainly expressed in the contract." Golden v. Golden, Adm'x, 155 Okla. 10, 8 P.2d 42.

In further support of said general policy of construction, see the following cases: Finerty Inv. Co. v. Athey,89 Okla. 284, 215 P. 611; Goble v. Bell Oil Gas Co., 97 Okla. 261,223 P. 371; Mid-Continent Life Ins. Co. v. Skye, 113 Okla. 184,240 P. 630; Breeding v. Ritterhoff, 126 Okla. 225, 259 P. 227; Shaw v. Grumbine, 137 Okla. 95, 278 P. 311; Woods v. Davis,155 Okla. 6, 7 P.2d 905; Dawson v. Coppock, 169 Okla. 115,36 P.2d 46; McCarty v. Lumry, 170 Okla. 156, 38 P.2d 937; City of Hobart v. Dailey, 170 Okla. 107, 39 P.2d 44.

"Covenants limiting the use of property must be construed strictly and not extended by implication." Samuel D. Moses et al. v. Melvin C. Hazen et al., 63 App. D.C. 104,69 F.2d 842, 98 A. L. R. 386.

"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; and doubts arising as to the intention of the parties must be resolved in favor of the free and untrammeled use of the land." Gardner v. Maffitt et al. (Mo.) 74 S.W.2d 604, 95 A. L. R. 452.

"Covenants restricting the use of real property are strictly construed in favor of the free and unrestricted use of such property. Due regard must be had for the purpose contemplated, as well as the circumstances surrounding the transaction, but in construing such a covenant the controlling factor is the expressed intent of the parties. Intent unexpressed will be unavailing, and substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenants." Moore v. Stevens (Fla.) 106 So. 901.

"Courts of equity do not aid one man to restrict another in the uses to which he may put his land unless the right to such aid is clear." Jennings v. Baroff (N.J. Eq.) 144 A. 717, 60 A. L. R. 1219.

We find no substantial conflict in the authorities. As pointed out in the case of Matthews Real Estate Company v. National Printing Engraving Co. (Mo.) 48 S.W.2d 911, 81 A. L. R. 1039, restrictions in conveyances will be strictly construed and will not be extended by implication to anything not clearly expressed in them; and if there be ambiguity in theterms of the covenant or substantial doubt of its meaning, such ambiguity should be resolved, if possibly it can be, in favor of the use complained of. We will not burden this opinion with the citation of numerous cases from various jurisdictions cited and analyzed in the briefs. Suffice it to say that a very clear distinction runs through all the authorities. If there is ambiguity in the language used in restrictive covenants or substantial doubt as to its meaning, then the courts are justified in taking into consideration the circumstances surrounding the platting to determine, if possible, the intent of the dedicators, and where such intent is ascertainable by construing the restrictions as a whole and giving due consideration to other circumstances which cast light upon said intent, the same should be given effect. In the instant case there is no ambiguity in the language used. The language is clear and specific to the effect that no building shall ever be used or occupied for any purpose except that of residence exclusively. There can be no doubt as to the meaning of such language, In order to sustain plaintiff's contention in this case we would be compelled to distort the well-established meaning of words of common usage, and to extend such meaning by implication to situations unexpressed in the instrument. If there was an intention on the part of the dedicators to restrict the use of the land itself, such intention is unexpressed, and is unavailing in this case. Moore v. Stevens, supra. In so far as the land itself is concerned, there are no express words limiting its use, and to that extent the defendants who are landowners in the addition hold the same in fee-simple title, subject only to the restrictions on the use of buildings erected thereon. Section 9698, supra.

We will refer briefly to the former decisions of this court cited in the briefs which deal with covenants restricting the use of real estate. In the early case of Test Oil Co. v. La Tourette, 19 Okla. 214, 91 P. 1025, the court applied the rule of strict construction in dealing with a stipulation in a deed whereby the parties agreed that in any deed thereafter executed on any part of a certain town-site addition they would prohibit any drilling for oil and gas thereon. The court held that the term "deed" did not include "lease," and that the parties were not prohibited from leasing the tract for the purpose of drilling oil and gas wells thereon.

In the case of Vaughn v. Lyon, 122 Okla. 179, 252 P. 1088, the court gave effect to a restriction upon a certain addition to the city of Tulsa providing that the real estate should "not be used for other than residence purposes" and enjoined the use of certain premises within the addition for hospital purposes. The issues involved in the recent cases of Van Meter v. Manion,170 Okla. 81, 38 P.2d 557, and Commercial Realty Co. v. Pope, 171 Okla. 331, 43 P.2d 62, are entirely dissimilar to the issues involved herein.

We hold, therefore, that the use of the land for drilling an oil and gas well is not prohibited by the express terms of the plat restrictions and that injunctive relief was properly denied under the theory on which the cause was presented to the trial court.

The judgment of the trial court is affirmed.

BUSBY, WELCH, PHELPS, and CORN, JJ., concur. McNEILL, C. J., and RILEY, BAYLESS, and GIBSON, JJ., dissent.