Central Land Co. v. Grand Rapids , 302 Mich. 105 ( 1942 )

I am not in accord with the opinion of Mr. Justice NORTH. This is an action in ejectment and the rules of law governing such actions must control here.

I agree with Mr. Justice NORTH that the conveyance by plaintiff was subject to a condition subsequent with right of reverter on breach of the condition. The deed contained the following condition:

"This conveyance is given upon the express condition that the two parcels of land above described shall be used solely for park, highway, street, or boulevard purposes; and if any part thereof be not used for any of such purposes, or at any time cease to be used for such purpose, or at any time be used for any other purpose, said part or parts shall immediately revert to the grantor, its successors or assigns; and it shall be lawful for the grantor, its successors, or assigns to reenter and repossess the same or any part or portion thereof, and thereafter to peaceably hold and enjoy the same as if these presents had not been made."

It is undisputed that the city leased the lands in question to the Rex Oil Gas Company on the basis of a venture by which the city was to receive a percentage of the earnings from producing wells; that the Rex Oil Gas Company actually drilled two oil wells, installed the necessary pipe lines and pumps, and constructed buildings to house pumps and gasoline engines; that the wells are producing wells; that in the drilling operation and maintenance of the wells and pipe lines, an area having a radius of 75 feet around each well and an area of five feet along and on each side of the pipe line was used; that pipes were laid from the wells to tanks 800 to 900 feet away; that the pipes were laid on the top of the ground except where they cross the boulevard; that each well is operated seven hours daily; that each well has its own pump housed in a building 10 by 16 feet; that there is considerable noise from the operation of the motors used in the operation; and that natural gas is exhausted in the air.

The language of the deed is clear and unambiguous and the only question is whether the conditions imposed upon the property have been breached. In determining this question we have in mind that the money spent by the city for highway purposes or the use that was intended to be made of the money derived from the oil wells have no bearing upon the issue involved in this case.

In the following cases the courts held that the contemplated or subsequent use of the property granted for park or street purposes was inconsistent with the conditions of the grant; and in an appropriate action such use was enjoined.

In Marshall v. Standard Oil Company of California, 17 Cal. App. 2d 19 (61 Pac. [2d] 520), a strip of land was deeded to the city of Huntington Beach "to be used exclusively for street purposes." The city subsequently leased part of the property for oil operations. The court enjoined the operation of the oil well; and in its opinion adopted the following holdings of several cases:

If the fee is in the public, it is held in trust, expressly or impliedly, that the land shall be used as a street, and it cannot be applied to any other purpose without a breach of trust.

Nothing can be clearer than that if a grant is made for a specific, limited and defined purpose, the subject of the grant cannot be used for another purpose, and the grantor retains still such an interest therein as entitles him to insist upon the execution of the trust as originally declared and accepted.

The acceptance of a deed containing a covenant on the part of the grantee is equivalent to an agreement on the part of the grantee to perform the same.

It is a matter of common experience or knowledge that to operate the machinery used in boring an oil well it is necessary to erect a derrick. A strong odor proceeds from a gas or oil well, and the noise of a well in operation can be heard for a long distance.

That the erection of oil derricks and the sinking of oil wells upon a public street constitutes both a public and private nuisance admits of no argument.

In Miller v. City of Columbia, 138 S.C. 343 (136 S.E. 484), a tract of 17 1/2 acres of land was conveyed to the city of Columbia for park purposes. Later the city attempted to erect a stadium and athletic field on a portion thereof. The court quoted the following rule:

"`If a dedication is made for a specific or defined purpose, neither the legislature, a municipality, or its successor, nor the general public has any power to use the property for any other purpose than the one designated, whether such use be public or private, and whether the dedication is a common-law or a statutory dedication, and this rule is not affected by the fact that the changed use may be advantageous to the public.' Grady v. City of Greenville, 129 S.C. 89 (123 S.E. 494)."

In Hill v. The Borough of Belmar, 3 N.J. Misc. 254 (127 A. 789), land was dedicated for a public park. The city attempted to build a swimming pool in the dedicated property. The court said:

"We are of the opinion that the use to which it is proposed to put this land is a use other and adverse to the purposes of the dedication. A park or public square cannot be said to be the same as a public swimming pool. Much testimony was devoted by respondent in the attempt to show that the construction of the proposed pool and its appurtenances would not materially obstruct a view of the ocean nor exclude the public, but the fact remains that such use is not reconcilable with the use of a park or public square."

In McIntyre v. Board of County Commissioners, El PasoCounty, 15 Col. App. 78 (61 P. 237), a piece of land was dedicated for a public park. The county later attempted to build a court house upon this property. The court said:

"The trustee cannot impose upon it any servitude or burden inconsistent with these purposes, or tending to impair them."

In City of Hopkinsville v. Jarrett, 156 Ky. 777 (162 S.W. 85, 50 L.R.A. [N.S.] 465), a piece of land was devised to the city for the purpose of a public park. The city attempted to use a part of the land to erect a public library. The court said:

"It is likewise well settled that if a grant or devise is made for a specific, limited and definite purpose, the subject of the grant cannot be used for another purpose, and a diversion of the subject of the trust from the purposes for which the trust was created may be enjoined."

See, also, Rowzee v. Pierce, 75 Miss. 846 (23 So. 307, 40 L.R.A. 402, 65 Am. St. Rep. 625).

Defendant relies upon Adams v. First Baptist Church of St.Charles, 148 Mich. 140 (11 L.R.A. [N.S.] 509, 12 Ann. Cas. 224), and other cases as authority for its claim that there was no breach of condition subsequent which would work a forfeiture. In the Adams Case, supra, the will directed "that the house and lots 4 and 5, Block H, in the village of St. Charles shall go to the First Baptist Church to be used as a parsonage and nothing else, and to be kept for that purpose and used for nothing else."

In the majority opinion, the court said:

"There is no devise over. * * *

"As the words employed in the will are not such as require the construction that the land was devised upon condition, and as we may reasonably reach the conclusion that the testatrix did not intend such a meaning to be given to them, we must hold there is no condition."

In the above case, a condition subsequent was not created, while in the case at bar, the conveyance was on condition subsequent. Hence, the above case is no authority for the proposition to be solved in the instant case.

In the instant case the land was conveyed to the city on condition that its use be limited to park and boulevard purposes coupled with a reverter and right of re-entry for any breach at any time of this condition. The record affords ample proof that the use made of the park by the city was a violation of the use for which the park was intended.

The trial court held that outside of the discovery of oil and the drilling of the oil wells plaintiffs have no interest in the enforcement of the conditions subsequent.

Defendants rely upon 3 Comp. Laws 1929, § 12966 (Stat. Ann. § 26.46), which provides:

"When any conditions annexed to a grant or conveyance of lands are merely nominal, and evince no intention of actual and substantial benefit to the party to whom or in whose favor they are to be performed, they may be wholly disregarded, and a failure to perform the same shall in no case operate as a forfeiture of the lands conveyed subject thereto."

In Hammond v. Hibbler, 168 Mich. 66, we said:

"It is the law of this State that a condition or covenant in a deed of real estate, restricting the use to which the property may be devoted, and not opposed to sound public policy, may be sustained and enforced if the party in whose favor it is made or reserved has an interest in the observance of the condition or covenant."

In the case at bar plaintiff had an interest in the removal of oil from its property and the operation of oil wells by the city in property adjacent to plaintiff's property would tend to reduce the amount of oil recoverable by plaintiff from its own property.

In my opinion, plaintiff had more than a nominal interest in the condition annexed to the grant. It was a substantial benefit to it to have the conditions enforced as was contemplated when the grant was made. The breach of conditions on the part of the city of Grand Rapids entitled plaintiff to a reverter of the lands actually used by the city in the drilling and operation of the oil wells.

The judgment should be reversed and a judgment should be entered determining the Central Land Company to be the owner in fee simple of a piece of land 75 feet in diameter around each well, using the casing as an axis, and a strip of land five feet wide along and on each side of the pipe line from the pumps to the storage tanks with the right of ingress and egress thereto. Neither party should recover costs.

CHANDLER, C.J., and BOYLES, J., concurred with SHARPE, J. WIEST, J., did not sit.