Opinion
No. 27408.
Opinion Filed December 1, 1936. Rehearing Denied January 9, 1937. Application for Leave to File Second Petition for Rehearing Denied February 2, 1937.
(Syllabus.)
1. Deeds — Estate Granted Presumed Estate in Fee Simple — Statute.
Every estate in land granted by deed shall be deemed an estate in fee simple, unless limited by express words. (Section 9698, O. S. 1931.)
2. Covenants — Covenants Limiting Use of Realty Strictly Construed.
Covenants limiting the use of property must be construed strictly and not extended by implication.
3. Same — Restrictions on Use of Property not Extended by Implication.
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.
4. Same — Covenant in Plat Restrictions Upon Certain Lots in Addition to Oklahoma City Held not to Prohibit Drilling for Oil and Gas.
A restrictive covenant contained in plat restrictions upon certain lots in Howe's Capitol addition to the city of Oklahoma City, providing that "no building shall ever be used or occupied except for that of residence exclusively," does not prohibit the drilling of a well for oil and gas upon said lots.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by Charles B. Cooke against Agnes Kutin et al. Judgment for defendants, and plaintiff appeals. Affirmed.
Shirk, Danner Earnheart, Charles Swindall, and J.H. Jarman, for plaintiff in error.
Howard B. Hopps, for defendants in error.
It is conceded by the parties that the issues of law and fact in this case are identical with the issues involved in the case of Charles B. Cooke v. John B. Kinkead et al., 179 Okla. 147, 64 P.2d 682, this day decided by this court, and that the opinion of the court in that case is controlling of the issues involved in this case.
Accordingly, the judgment is affirmed.
BUSBY, WELCH, PHELPS, and CORN, JJ., concur.
McNEILL, C. J., and RILEY, BAYLESS, and GIBSON, JJ., dissent.