178 S.E. 513 | W. Va. | 1935
This appeal contest the right of defendants to drill an oil and gas well for commercial purposes on a residential city lot (in Huntington) held by defendant J. M. Lewis. The appellants charge that the drilling violates a restrictive covenant in the original grant of the lot and is also a nuisance. The several decrees herein reflect some procedural confusion, but it is clear that an injunction granted was finally dissolved on motion of defendants and "the bill" dismissed. No answer was filed in the circuit court, and no appearance at all is made in this court by the defendants.
The following facts are alleged in the original and amended bills: The plaintiffs are the owners, severally, of lots near the Lewis lot. Both the plaintiffs and Lewis derive title from a common vendor, who, a number of years ago, subdivided his land and sold it in lots. He imposed alike on every lot vendee certain restrictive covenants designed to thwart commercial use of the lot. Plaintiffs and other lot purchasers have built expensive homes in the subdivision. It has become a desirable residential section.
The covenant relied upon specially by plaintiffs follows: "That no sand pit or gravel pit shall be excavated upon said premises hereby conveyed, and that no sand or gravel or other mineral substance shall be taken from same for use for *50 commercial purposes, or for any purpose, other than that of grading of said premises, or * * * to be used in connection with any building to be erected thereon."
It is a familiar rule of equity that when deeds from a common grantor parceling a tract of land contain a like restrictive covenant (not contravening public policy), it may be enforced by any grantee against another grantee. Several theories are advanced for the rule. See Cole v. Seamonds,
The covenant in question prohibited the removal of any "mineral substance" from the lot. Petroleum and natural gas in place are ordinarily classified as minerals. Preston v. White,
We hold accordingly that the injunction was properly granted on the plaintiffs' pleadings and that its dissolution and the dismissal of the bill on motion was error. The decree of the circuit court is reversed and the cause remanded.
Reversed and remanded.