Aсtion by plaintiffs, as successors in interest of certain lessors in a conveyance known as an oil and gas lease, to compel the assignee of the lessee thereunder to comply with a covenant therein to keep the premises free from liens arising from drilling and producing operations under said instrument. The question arose by the sustaining of respondent’s demurrer to the complaint without leave to amend. The facts, therefore, are not in dispute and the single proposition is presented as to whether the *684 rules of equity will authorize relief. The prayer of the complaint is for damages, it is true, but the complaint itself will support equitable relief.
The lease in question is but the so-called ordinary oil and gas indenture authorizing the exploration for and the production, if found, of oil and gas upon the demised lands. Under the provisions of the Civil Code and the decisions of this court, such an instrument is more than a mere usufructuary lease; it is a property right in the nature of a servitude or chattel real at common law, which may be held and enjoyed as an estate for years or perpetually during production. (Civ. Code, sec. 819;
Graciosa Oil Co.
v.
Santa Barbara,
It should be noted also that here oil in commercial quantities had been found and the well or wells were at the times in question on production. It- is plain, therefore, that there is a privity of estate between the plaintiff herein and the assignee of the lessee. Moreover, this particular lease was made outright to the “lessee, his successors and assigns”, and it provided in this connection: “The lessee shall have the right, without the consent of the owner, to assign this lеase, in whole or in part, or sub-let any part of the leased land. In which event the lessee shall be automatically released from all obligations thereafter accruing under this indenture.”
Coming to the immediate basis for this controversy, the lease provided: “The lessee shall not suffer or pеrmit any laborer or materialmen’s lien, or liens of like nature, to arise or exist upon or against the leased land, by reason of his operation under this indenture, and shall hold the owner harmless against any and all such liens. . . . All provisions, covenants, agreements and stipulations contained in this indenture, by which either of the parties hereto are *685 bound, shall in like manner be binding upon the heirs, successors and assigns, of the parties so bound; and those which are for the benefit of either of the parties, shall in like manner inure to the benefit of the heirs, successors and assigns of the parties so benefited; and all of such provisions, covenants, agreements and stipulations shall run with the land.”
The lease was executed November 14, 1925. In December, 1925, one Playter, the original lessee, became indebted to the Union Tank and Pipe Company in the sum of $3,529.50 for oil-well casing used in drilling on said property. On May 4, 1926, sаid claim became a mechanic’s lien upon the property, after having been duly filed as such. On May 5, 1926, the original lessors executed a deed to these plaintiffs, which was delivered on May 24th following. On April 2, 1926, however, and prior to the filing of said claim of lien, said Playter assigned the lease to respondent W. J. Colter. Later said lien claim was reduced to a judgment which the real property was sold to satisfy. But prior to the expiration of the period for redemption this action was initiated and, as above noted, we may treat it as an action to compel redemption frоm said lien or for reimbursement if plaintiffs should themselves redeem the land.
The matter is now reduced to the sole question of whether or not respondent Colter must respect the covenant above noted to protect the property from liens. It is true that the indebtedness arose under Playter but it is also a fact that the lien did not arise until a month or more after Colter had received the assignment and entered into possession of the property thereunder. It is also noticeable that under the terms of the lease, Playter, following the assignment, was released from all liability so that thе obligation became one for Colter to comply with or else plaintiffs are without redress.
We entertain no doubt that the covenant to keep the premises free from liens of their own making, binds not only the lessee but his assignees as well. Respondent’s position, however, in this connection is: “That said complaint does not state facts sufficient to constitute a cause of action against the defendant W. J. Colter, in that the said W. J. Colter, in accepting a naked assignment of the lease set forth in the complaint, did not thereby become bound by
*686
the terms of said written lease. ’ ’ This contention he attempts to support by a reliance upon sections 1461, 1462 and 1463 of the Civil Code, which read in part as follows (sec. 1461): “The only covenants which run with the land are those specified in this title, and those which are 'incidental thereto.” (Title III of said code.) Section 1462 describes generally such covenants as follows: “Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land.” Section 1463 provides: “The last section (1462) includes covenants ‘of warranty’, ‘for quiеt enjoyment’, or for further assurance on the part of a grantor, and covenants for the payment of rent, or of taxes or assessments upon the land, on the part of a grantee.” From these statutes respondent deduces the conclusion that the covenant to keep the servient tenement free from liens is a mere personal covenant not running with the land and hence not binding upon the assignee unless specially covenanted for- by him, citing in that connection
Realty & Rebuilding Co.
v.
Rea,
We are of the opinion that two successful and effective answers may be made to this contention. First, that the covenant in question does run with the land and, second, that whether it does or not, equity will enforce it against respondent under well-settled and repeated holdings of this court.
The marked tendency of our decisions seems to be to disregard the question of whether the covenant does or does not run with the. land and to place the conclusion upon the broad ground that the assignee took with knowledge of the covenant and it was of such a nature that when the intention of the parties coupled with the result of a failure to enforce it was considered, equity could not in conscience withhold relief. To this class of holding belong the following, among many other eases:
Hunt
v.
Jones,
149 Cal.
*687
297 [
But we think where it is clear that the covenant dоes run with the land it is better that it be so declared. Under se'ction 1462 a covenant to run with the land must be of “direct benefit to the property”. Where a servitude only is created by the instrument in question, any covenant that will protect the title of the servient tenement would seem clearly to be a direсt benefit to it. We are at a loss to know why a covenant to protect it from liens of the owner of the servitude is not for the direct benefit of the property out of which it is carved.
The illustrations given in section 1463 of three instances of such covenants on the part of the grantor and two оn the part of the grantee are by no means intended to be ex-
*688
elusive or all-inclusive, but within the definition in section 1462 of said Civil Code many others may and do exist. For example, covenants to insure, to repair, to deliver up possession, to renew a lease, to exercise an optiоn to purchase, to restrict alienation, to develop mineral resources on a royalty basis, are all such as run with the land. (7 R. C. L., p. 1106, sec. 22; Supp., vol. 3, p. 2139; 1931 Supp., p. 327.) In California as early as
Laffan
v.
Naglee,
“If the lessor chooses, at any time hereafter, to sell, and should offer the property for sale, on such terms as she may choose, lessee may have the liberty of buying it, in preference to any one else.”
In
Coburn
v.
Goodall,
In
Standard Oil Co.
v.
Slye,
The more recent case of
Sacramento S. F. L. Co.
v.
Whaley,
*690 Finally, Mr. Washburn, in his work on Real Property, volume 2, section 1205, states the rule as follows: “Such covenants, and such only, run with the land as concern the land itself, in whosesoever hands it may be, and become united with, and form a part of, the consideration for which the land, or some interest in it, is parted with, between the covenantor and covenantee.”
Basing our conclusion upon a deduction from the definitiоns given in said statutes, supported by the above authority, we hold a covenant by the lessee in an ordinary oil and gas lease, to keep the. property free from liens due to operations on the property demised, is binding upon his assignee and this is particularly true where, as here, the оperations have resulted in the discovery of oil and the lien is allowed to accrue during the period of production.
The judgment is reversed with directions to overrule the demurrer and to permit, if thought advisable, amended or supplemented pleadings.
Seawell, J., Shenk, J., Curtis, J., Richards, J., and Waste, C. J., concurred.