Indian Territory Illuminating Oil Co. v. Larkins , 168 Okla. 69 ( 1934 )

I am unable to concur with the result which has been arrived at by the majority opinion. It is my opinion that the facts in this case do not justify a permit to drill for oil and gas on the tract of land in question, being unplatted land, consisting of .168 of an acre, approximately 50 feet wide and 146.6 feet long, located within the U-7 drilling zone in Oklahoma City. This is not the usual case where a property owner may exercise the right to drill upon his property for the purpose of extracting oil and gas therefrom, nor is it a question of determining whether or not, in the abstract, the drilling of an oil and gas well constitutes a nuisance, or whether the same rule is applicable when considered in connection with the drilling of an oil and gas well within a zoning drilling area, in a proven highly productive oil and gas field in Oklahoma City, where wells at times have been known to run wild to the terror of nearby residents and property owners in said city.

In my opinion the search for oil and gas in a large city must yield and be amenable to the rights of others. The real question in this case is whether or not the zoning ordinance can be disregarded in the manner authorized by the majority opinion so as to permit the property owners of such a small tract of land to drill an oil and gas well thereon. It is asserted that there are producing wells on every side of this tract of land which is being drained for oil and gas purposes. This court has heretofore considered the zoning ordinance in question in the case of Anderson-Kerr, Inc., v. Van Meter,162 Okla. 176, 19 P.2d 1068. In that case the tract of land consisted of a fractional 63/100 of an acre, and it was shown by the record that a well on the tract of land involved in that ease would drain approximately eight acres and that 90 per cent. of the drainage would belong to others than the owner of the tract or land involved in that case.

In the instant case it appears undisputed that a well on the proposed tract involved in this case would drain the oil and gas front approximately five acres, and that 97 per cent. of this oil would come from adjoining property. It was estimated that the oil recoverable under this tract of land 50 feet wide and about 146.5 feet long would amount to 28,000 barrels, and the cost of drilling a well on this property would be approximately $100,000, to a depth of about 6,500 feet. When the general posted price of oil for 40 gravity oil is figured tit 62 cents, it is apparent that the lessee and owners of this minute tract are not very much concerned in extracting the estimated maximum three per cent. of the recoverable oil which would actually come from under their premises, but are relying upon the 97 per cent. of recoverable able oil which will drain into this well from the property of others. The very face of such a condition is not wholesome.

The district court made certain findings which, in substance, were that wells have been drilled on till sides of the property; that all the property surrounding the parcel of land involved herein is participating in the production of the surrounding wells; that the owners of the parcel of land involved have duly and diligently made application to have the land involved attached to the adjoining drilling areas; that the owners have been denied by the board of adjustment the right to participate in the oil and gas produced; that unless a permit is granted to drill upon the property involved herein, all of the oil lying therein and thereunder will eventually be drained from under the property by wells which are being drilled on surrounding tracts; that to drill on the tract involved, it would be necessary to locate the well less than 50 feet from the side line of said land; that the literal enforcement of the provisions of the zoning ordinance of the city would result in unnecessary hardship; that if a permit were granted contrary to the provisions of he ordinance, the spirit of the ordinance would still be observed, and that by such granting substantial justice would be accomplished and the granting of such permit would not be contrary to public interest.

The assignments of error which were presented, in part, are as follows:

"7. The court was without jurisdiction to enter an order granting a permit to the applicant."

"9. The court's finding 'that the literal enforcement of the provisions of the ordinance will result in unnecessary hardship, that by granting the permit contrary to the provisions of the ordinance, the spirit of the ordinance will still be observed, and that by such granting substantial justice will be accomplished, and that the granting of such permit is not contrary to the public interest as not sustained by sufficient evidence, and is against the clear weight of the evidence.

"10. The granting of the permit under the facts shown by the record in this case is contrary to public interest, and contrary to the spirit of the zoning ordinances and the drilling ordinances of the city of Oklahoma City, and the granting of such permit is not necessary in order that substantial Justice may be done, and for those reasons the court erred in the judgment rendered."

"12. The property involved in the application is a part of a tract of more than five acres, and, under the terms of the ordinances of Oklahoma City, the board of adjustment, or the district court on appeal from the order of the board of adjustment, had no Jurisdiction or authority to attach Portions of such tract to the drilling blocks, thereby reducing the acreage in that portion of the tract remaining unattached to less than five acres. The undisputed evidence shows that the owners of the property described in the application requested and urged the attachment of portions of a tract of more than five acres to adjoining drilling blocks, although the same could not have been attached over their protest, and, by their own actions, the tract has been reduced until the small tract involved in the present case is all of the right of way property which has not been attached to some drilling block. For those reasons the court erred in granting the permit to applicant."

This property comes within the zoning area of said city and the zoning ordinance prohibits Me drilling an oil and gas well on less than five acres on unplatted land, and section 7 of ordinance 3944, provides:

"No well for the production of, or mining for petroleum or natural gas shall be drilled or put down nearer than 50 feet from the property line of the tract on which such well is situated."

This section of the ordinance is violated by the granting of a permit to drill an oil and gas well on the land in question.

In the Anderson-kerr Case, the location which was ought to be proposed for the drilling of an oil and gas well was within nondrilling territory, fixed by section 2 of ordinance 4090, which prohibited the drilling of a well upon any property within 300 feet of the boundary line of U-7 zone.

It appears that R. Carl Larkins, the owner of an oil and gas lease on the small tract of land ill question, which he had received by assignment from W.B. Skirvin on December 13, 1932, made application to the building superintendent of Oklahoma City, in February 1933, for a permit to drill an oil and gas well on this tract of land. This application was denied and an appeal was taken to the board of adjustment of Oklahoma City. After a hearing the board of adjustment denied this appeal on March 27, 1933. Thereafter an appeal was taken to the district court of Oklahoma County. On August 27, 1933, the district court entered its judgement reversing the board of adjustment and granted said Larkins a permit to drill for oil and gas.

It also appears that this strip of land is a portion of the south half of the Chicago, Rock Island Pacific Railway right of way, which right of way extends through the southeast quarter of section 34, township 12 north, range 3 west, and is a strip 100 feet wide. The right of way strip comprises more than five acres of ground. The tract in question is bounded on the north by the center main track of the Rock Island, and the south line of the property is the south right of way line of the Rock Island, there being two tracks on said right of way strip. The west boundary line of the tract is an extension due south of the east line of Laird avenue, and the east boundary of the tract is 660.4 feet west of the east line of section 34. The owners of the tract in question executed an oil and gas lease on the same to W.B. Skirvin on September 3, 1931, and that lease included block 18 in Phillips and Mead's East Side addition to Oklahoma City, and that portion of the right of way of the Chicago, Rock Island Pacific Railway Company, 100 feet in width, lying between or extending south of the west line of Laird avenue to the east line of the southeast quarter of section 34. It will be observed that this lease not only covered the tract in question, but that portion of the right of way on Laird avenue extending south immediately adjacent to the west of the tract in question; that portion of Laird avenue extended south being a tract 60 feet by 100 feet; thereafter, on October 5, 1931, W.B. Skirvin and B.V. Whitefield made application to the building superintendent for a permit to drill on said lease, the well to be located on block 19 in Phillips and Mead's East Side addition. This drilling block area for said permit included the tract in question.

It appears that the board of adjustment granted said lessees a permit to drill all of said blocks 18 and 19 and the north 50 feet of the right of way of the Chicago, Rock Island Pacific Railway Company from the center line of Kelly avenue produced south to the east line of section 34, adjoining said block 19 on the south, and a portion of the right of way of the Missouri, Kansas Texas Railroad Company lying north of the right of way of the Chicago, Rock Island Pacific Railway, which property did not include the land in question. Thereafter an appeal was taken to the district court of Oklahoma county and the district, court affirmed the order of the board of adjustment for permit to drill an oil and gas well with certain modifications.

The district court detached the triangular portion of the right of way of the Missouri, Kansas Texas Railroad Company, consisting of approximately .27 of an acre, and added to the acreage covered by the permit granted by the board of adjustment the north 50 feet of the right of way of the Chicago, Rock Island Pacific Railway Company from the center line of the Kelly avenue produced south, extending easterly to the east line of Laird avenue produced south. It will be observed that the instant tract was not included in the drilling permit by the judgment of the district court, though it was adjacent to the land covered by said permit. It is also noticeable that the land detached by the district court was the said! Missouri, Kansas Texas Railroad Company tract and the south 50 feet of the Chicago, Rock Island Pacific Railway Company right of way covered by the Skirvin lease.

It also appears that the district court, in its journal entry of judgment entered on January 22, 1932, recites that the order of the board of adjustment heretofore made "be and the same is hereby modified to include block 18, Phillips Mead's East Side addition in the drilling area as set forth therein for all purposes under the terms and conditions of the stipulation entered into between the interested parties as evidenced by certain contracts introduced in evidence in this court, being the owners and holders of the lease upon the property within the drilling area as fixed herein." It thus appears that the district court modified the order of the board of adjustment and did not include the tract of land in question which was in accordance with the stipulation of the owners of the Skirvin lease. There is nothing in the record to indicate why the district court should not have included this small tract of land in the Skirvin application to drill. No appeal was taken from the judgment of the district court rendered January 22, 1932, by any of the parties. In fact, it appears proper to conclude that it must have been the stipulation entered into between said owners and said lessees of the Skirvin lease which prompted the district court to enter said judgment modifying the order of the board of adjustment and thereby eliminating the small tract in question from the area which the owners had sought to have included in their drilling area for a permit.

It also appears that on March 16, 1931, the board of adjustment attached to the Watchorn drilling permit area the south half of the right of way strip which was contiguous to the Watchorn lease, being a strip 50 feet wide by 661.8 feet long, which included the instant tract. This case was appealed to the district court, and on May 11, 1931, this right of way strip, which includes the instant tract, was eliminated from the Watchorn drilling permit area. Before this strip was eliminated from the Watchorn drilling permit area, the board of adjustment, on March 27, 1931, attached the south half of the east 660 feet of the right of way strip of the Chicago, Rock Island Pacific Railway Company, which lies adjacent to and east of the tract of land which we are considering, to the I. T. I. O. and Phillips drilling permit area.

Defendants in error, in their brief state: "On that date, to wit, March 27, 1931, the board of adjustment had disposed of the South 1/2 of the east 1,321.8 feet of the right of way strip" (which would include the instant tract) "but when on May 11, 1931, the district court detached the above-described portion from the 'Watchorn area,' the corner stone of the present case was laid." It also appears that, after the instant tract was eliminated from the Watchorn permit, thereafter, on November 11, 1931, another permit area was created known as the Diffie drilling permit area, by order of the district court. After these drilling areas had been defined, there then existed unattached to any drilling area the tract of land in question. It will be observed that the owners of the tract in question joined in the lease of Skirvin which was executed September 3, 1931, which lease covered this unattached portion and also block 19, Phillips and Mead's East Side addition.

It will also he observed that when the Diffie application was made, the owners of the right of way, including the property involved herein, made application to have only the portion of right of way property attached to the Diffie block which was west of the east line of the Laird avenue extending and adjoining the tract on west, and did not seek to have the property in question attached to that block. The board of adjustment considered the Diffie application in July, 19314 but the district court made its order in reference to the Diffie block on November 20, 1931. While the Diffie application was pending, which was prior to the detachment of the property from the Skirvin drilling area as defined by the district court oil January 22, 1932, the owners of the properly in controversy had executed the Skirvin Lease on, to wit, September 3, 1931. It is apparent that the owners of the property in question had sought to divide their property Ho as to place this particular tract in the Skirvin lease, and that they desired the same to be excluded from Diffie permit area, although the Diffie area is contiguous to the instant tract.

Larkins, at the time he received his lease on the tract in question, December 13, 1932, from Skirvin, was chargeable with all the facts surrounding the drilling areas which had been authorized. Under such circumstances, it is my view that the granting of the permit in the instant case is manifestly contrary to the provisions of the zoning ordinance, and that the very intent, object, ultimate purpose, and spirit of the ordinance is overlooked. To grant a permit to drill an oil and gas well on the instant tract of hand, which would drain, under the evidence, oil from an area of approximately live acres and receive 97 per cent. of the oil recoverable from adjoining property, would destroy the effect and limitation of the ordinance. The cost of drilling a well on this property will be approximate $100,000. If substantial justice permits the drilling of such a well, it appears to me that it would be difficult to say why offset wells should not likewise be drilled to the proposed well, all in violation of the provisions of the zoning ordinance. If such results, the intent and the purpose of the zoning ordinance becomes nullified and ignored, and in the language of the Supreme Court of Massachusetts, in the case of Prusik v. Board of Appeals,160 N.E. 312, "there would be little left of a Zoning law in respect to the rights of neighbors or of the public."

The owners of the property in question should not, be denied the right to such equitable relief, if they can establish that they have endeavored to come within the intent, purpose, and the provisions of the zoning ordinance in good faith, and that a set of circumstances has prevailed through no fault or want of diligence on their part whereby they are unable to share in the production of oft or gas which may be coming from beneath their property. It occurs to me that such a question would be very proper for the consideration of a court of equity, and that substantial justice could be fully kind adequately administered in that forum rather than attempting as the majority opinion does, in my opinion, to grant the Permit and thereby, nullify the zoning ordinance. A court of equity is not powerless to render relief.

Stability to zoning ordinances should be given consideration and their provisions should be relaxed sparingly, and then only under plainly justifiable condition, See Prusik v. Board of Appeals (Mass.) 160 N.E. 312.

It is my conclusion that the record does not justify an additional well to be drilled on this isolated tract, being less than the acreage required by the zoning ordinance and in further violation of the 50 foot provision for the location of a well and the real intent and purpose of the ordinance. I see no substantial justice in granting the permit. It clearly opens the door so that technical questions can override the Plain provisions of a zoning ordinance enacted to protect the property, lives, and general wellbeing of those citizens residing within the municipality. When more oil and gas wells are drilled within the drilling areas, the hazards are unquestionably highly intensified and increased. The intent of the ordinance should be rigidly upheld, otherwise it has no force or meaning.

For these reasons, I dissent.

I am authorized to announce that Justice WELCH concurs.