This cause is before us upon an appeal from the judgment of the trial court perpetually enjoining and restraining the City of Huntington Beach and its lessee, Carr Oil Corporation, from carrying on drilling and oil production operations on and within a portion of that public street or highway known as “Ocean Avenue”. The action was begun by A. D. Marshall, a citizen and taxpayer of the City of Huntington Beach, to restrain such operations. Respondents Huntington Beach Company and Pacific Electric Railway Company each filed cross-complaints against the city and its lessee, Carr Oil Corporation.
*22 While many authorities have been cited, and much industry has been shown by the collection of cases having to do with limitations in the habendum clauses of the deeds, the real question to be determined in this cause is whether the premises involved were accepted by the City of Huntington Beach upon trust for the purposes specified in the followring instruments:
“THIS INDENTURE, made the twelfth day of January in the «year of our Lord Nineteen Hundred and Sixteen between the Huntington Beach Company, a corporation organized under the laws of the State of California, and having its principal place of business in the City of Huntington Beach, County of Orange, and State of California, the party of the first part, and The City of Huntington Beach, Orange County, California, the party of the second part,
“WITNESSETH: That the said party of the first part, for and in consideration of the sum of Ten ($10.00) Dollars, gold coin of the United States of America, to it in hand paid by the said party of the second part, the receipt whereof is hereby aeknowdedged, does by these presents, grant, bargain and sell, convey and confirm unto the said party of the second part, and to its successors and assigns forever, all that certain lot, piece or parcel of land, situate, lying and being in the City of Huntington Beach, County of Orange, and State of California, and particularly described as follows, to-wit: A strip of land one hundred (100) feet in width lying northeasterly of and adjoining throughout its length the right of way of the Los Angeles Inter-Urban Railway Co., as described in the first part of that certain deed recorded at page 260 of Book 155 of Deeds, records of Orange County, California, and extending from the quarter section line running north and south through the center of Section 4, T. 6 S., R. 11 W., S. B. B. & M., to the northwesterly line of Twenty-third Street in the City of Huntington Beach, California.
“The side lines of the herein described strip of land are to be shortened or lengthened as the case may be so as to begin in the above described quarter section line, through the center of said Section 4, and to terminate in the northwesterly line of Twentyrthird Street in the City of Huntington Beach, California. The herein described one hun *23 dred (100) foot strip of land is more particularly shown colored on the accompanying map.
“The purpose of this deed is to deed the herein described strip of land to the City of Huntington Beach for street purposes, to be known as Ocean Avenue.
“Reserving and Providing, however, that the land herein conveyed is to be used exclusively for street purposes, said street to be known as Ocean Avenue, and the grantor reserves unto itself or its assigns the right to use said land for water, sewer, or gas pipes, telephone and electric lines and poles, railroads, conduits, or any other public utility.
“TOGETHER with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder, and remainders, rents, issues and profits thereof.
“TO. HAVE AND TO HOLD, all and singular the said premises, together with the appurtenances unto the said party of the second part, and to its successors and assigns forever. ’ ’
The purpose for which the foregoing instrument was executed and the reservations therein contained do not appear in the habendum clause of the deed, but are inserted in, and annexed to the granting provisions of the instrument. In this particular the deed under consideration differs materially from practically every case cited by the appellants.
Where the purpose for which the deed is executed appears in the habendum clause, the authorities universally hold that such declaration does not debase the fee, or whatever interest is conveyed in the granting clause. This principle, however, does not apply where the qualifying words appear in the granting clause of the deed. This distinction is made clearly to appear from the following excerpts which we quote from 9 California Jurisprudence, page 274: “An expression of the purposes of the conveyance as to the use of the property conveyed, ‘as for the purpose of a public road’, or ‘for a county high-school ground and premises’, or for certain religious and educational purposes, are generally held to be directory only, and not to qualify or limit a grant which is in absolute form. But this principle is not applicable where the qualifying words are in the granting *24 part of the deed, and so clearly connected with the word ‘grant’ as naturally to suggest that the intention was merely to convey the right to use the property for a certain purpose.”
The rule seems to be pretty well settled, also, that if several parts of a grant are irreconcilable, the former prevails. (Sec. 1070, Civ. Code.) In the instant case there does not appear anything in the habendum clause contrary or irreconcilable with any of the provisions contained in the granting part of the deed. The habendum clause simply confirms the right in the party of the second part to have and to hold whatever has been conveyed by the granting clause of the instrument. It neither purports to enlarge nor diminish any of the rights or privileges so granted.
There is also a distinction to be drawn between a covenant and a condition in order to ascertain the true intent and meaning of the instrument under consideration and what the respective parties had in mind at the time of its execution and receipt. A covenant in a deed may create a trust relationship and impose upon the grantee an obligation to use the premises for the purposes set forth in the conveyance. A condition does not impose a trust but is employed for the purpose of enabling the grantor to claim a reversion of the property upon breach of the condition. Covenants will be more liberally construed than conditions. Conditions working a forfeiture are strictly construed. A covenant imposes a trust and raises an implied promise on the part of the grantee to use the premises for the purposes specified.
In
Greene
v.
O’Connor,
18 R. I. 56 [
In the particulars which we have heretofore mentioned, the instant case is readily distinguishable from that of
Cooper
v.
Selig,
The deed under consideration, in the granting part thereof, uses language which we think clearly imparts the intention of the parties at the time of its execution. We refer to the following language contained therein: “Reserving and provided, however, that the land herein conveyed is to be used exclusively for street purposes.” Other reservations follow which retain a right and privilege that may subsequently be exercised on the part of the grantor, which we will consider later on in this opinion.
The word “exclusively” has a definite and certain meaning. After the execution of the deed it was received and accepted by the City of Huntington Beach, on the 28th day of February, 1916, as appears by the following resolution adopted by the city council of the City of Huntington Beach, to wit:
“The following deeds were received from the H. B. Co. . . . Dated 1/12/16. A strip 100 ft. wide paralleling the P. B. Ry. right of way on 23rd St., northwesterly to the city boundary for street and highway purposes. And it was moved by trustee Tarbox, seconded by trustee Helme and carried that deed be accepted and City Clerk be instructed to have same recorded.”
This resolution shows the intent of the City of Huntington Beach in the reception of the deed and the acceptance of the trust therein imposed to use the property for an exclusive purpose.
Considerable space has been given by counsel in the discussion of what does and what does not amount to a dedi
*26
cation, and also as to the interest conveyed being a fee simple to the lands and premises described in the deed. We do not need to give any attention to whether the instrument involved did or did not amount to a dedication, nor does it seem to us material to dwell upon the question as to whether the City of Huntington Beach owns all the lands, minerals, etc., contained under the surface within the boundaries set forth in the deed. If the right to the premises or title to the premises was accepted upon trust, the right to have that trust enforced is vested in the grantor. After the execution of the instrument which we have set forth herein, to wit, on the 3(2th dsiy of August, 1932, the City of Huntington Beach entered into a lease with the Carr Oil Corporation whereby it purported to lease a strip of land 30 feet wide and approximately 6,000 feet long, situate and lying along the ocean side of Ocean Avenue. There are exceptions in the strip reserved from the lease aggregating approximately 510 feet. The purpose of the lease was to enable the Carr Oil Corporation to erect oil derricks thereon, and to explore the strip of land conveyed for the purposes of developing oil and gases. The' lease specified that the Carr Oil Corporation should erect at least ten oil derricks, sink at least ten wells in the development of the property, and also sink other wells as might appear convenient or profitable. The Huntington Beach Company owns all the land on the landward side of said Ocean Avenue, and also on the ocean-side -save and except a 60-foot strip over which is the interurban track of the Pacific Electric Railway Company. The ownership of the minerals lying beneath the surface of the street is not material if the premises were accepted upon trust. We may here state that Ocean Avenue has been used by the City of Huntington Beach as a public highway, and devoted exclusively to the uses of the public as a highway for a great many years preceding the institution of this action. This of itself we think amounts to a dedication to the public of Ocean Avenue as a highway for the benefit of the public, and to be used and enjoyed by the public as a highway without unnecessary obstruction placed thereon, or unnecessary limitations of the use thereof.
(People
v.
County of Marin,
The same principle is set forth in the case of
Wattson
v.
Eldridge,
That the intention of the parties and the construction to be given to a deed is to be ascertained from a consideration of the whole instrument is supported by the case of
Boyer et al.
v.
Murphy,
The right to maintain an action to enjoin the use of premises for purposes other than those specified in the deed of conveyance is affirmed in the case of
Barker
v.
Hazel-Fain Oil Co.,
(Tex. Civ. App.)
To the same effect is the case of
Herald
v.
Board of Education,
In the case of
Spinks
v.
City of Los Angeles,
There is also another reason to be considered when construing the reservation contained in the granting portion of the deed, and that is the fact that the grantor owned the premises on both sides of the right of way conveyed, and therefore limited the purpose for which the premises could be used, in view of the fact that oil wells sunk on the narrow strip would drain oil from the adjoining premises owned by the grantor'. This question was decided in favor of the grantor in the case of
Barker
v.
Hazel-Fain Oil Co., supra.
(See, also,
School District
v.
Barnes,
In
Slavich
v.
Hamilton,
*29
That the acceptance of a deed containing a covenant on the part of a grantee is equivalent to an agreement on the part of the grantee to perform the same is supported by the text in 15 C. J. 1211. (See, also, 3 Thompson on Real Property, page 77;
Pedro
v.
Humboldt County,
The Ontario cases cited by the appellants are not pertinent here by reason of the fact that they are based upon legislative acts dissimilar from any that prevail in this state.
That the erection of oil derricks and the sinking of oil wells upon a public street constitute a public nuisance and a private nuisance to abutting property owners seems to us a question that admits of no argument, and one of which the court can take judicial knowledge. The fact that the obstruction constitutes a public nuisance does not prevent an owner of adjoining property from prosecuting an action.
(Fitzgerald
v.
Smith,
In the case of
Brown
v.
Spilman,
Any monetary benefit which the City of Huntington Beach might receive by reason of the operation of the oil wells along the strip attempted to be leased to the Carr Oil
*30
Corporation cannot be taken into consideration.
(City of Los Angeles
v.
Lewis,
In addition to what we have said, the deed to the City of Huntington Beach contains the following reservation, retaining rights in the grantor, to wit: “And the grantor reserves unto itself, or its assigns, the right to use said land' for water, sewer or gas pipes, telephone and electric lights and poles, railroads, conduits, or any other public utility.” This reserves the right to use any portion of the thirty-foot strip attempted to be leased to the Carr Oil Corporation for the purposes therein mentioned, and that right exists in, and belongs to the grantor, irrespective of whether it is or is not making a present use thereof.
Other cases might be cited showing that the erection and use of the thirty-foot strip alongside the ocean-side portion of the highway would constitute a nuisance which equity will enjoin, but what we have said in cases cited we think sufficient.
Bespondent urges further that the lease is violative of section 14 of article I of the Constitution of the state of California, and also of section 10 of article I of the federal Constitution. In view of what we have said we think it unnecessary to consider constitutional objections.
We have not overlooked, but do not deem important, the question as to what the pleadings allege and what the pleadings admit, for the reason that the construction of the deed *31 which we have given seems decisive and necessitates an affirmance of the judgment. And it is so ordered.
Pullen, P. J., and Thompson, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on November 7, 1936.