Indian Territory Illuminating Oil Co. v. Larkins

OSBORN, J. This is an appeal from a judgment of the district court of Oklahoma county reversing the action of the board of adjustment of Oklahoma City and ordering the building superintendent of Oklahoma City to issue to the applicant, R. Carl Larkins, one of the defendants in error, a permit to drill a well for oil and gas upon a tract of land in the U-7 drilling zone in Oklahoma City. Larkins applied to the building superintendent of Oklahoma City for a permit to drill an oil and gas well on a tract of unplatted land consisting of .168 of an acre located in the U-7 drilling zone in Oklahoma City. The application was denied, and an appeal was taken to the board of adjustment . of the city, and there denied. An appeal was then taken to the district court of Oklahoma county. The court rendered judgment on August 11, 1933, granting the permit to drill. The tract of land in controversy is within the U-7 drilling zone, a part of a larger tract, the remainder of said tract having been attached to other tracts by the board of adjustment, and wells having been drilled *71 on all sides of the property herein involved, and all the property surrounding the parcel of land involved is participating in production. The owners of the tract involved made application to have said tract attached to adjoining drilling areas in order that said land might participate in the royalty from the drilling of wells in the adjacent drilling areas, but said right was denied by reason of objection of some of the plaintiffs in error herein. There is no attempt to show that the. drilling of the well on the tract in controversy will constitute a serious fire hazard, or that the lives or property of citizens will be jeopardized by the drilling of such additional well, but it is shown that said vicinity has largely been given over to the production of oil and gas. It has been called to the attention of the court that, while the city of Oklahoma City and J. W. Van Meter, building superintendent, gave notice of appeal from the judgment of the trial court authorizing the issuance of a drilling permit, they have withdrawn their notice and expressly waived their right to appeal from said judgment, and that thereafter, on the 10th day of October, 1033, the district court made a subsequent order directing the issuance of such drilling permit. It is shown by supplemental proceedings that said drilling permit' was in fact issued, and that certain persons pursuant to authority from Larkins have gone upon said lands and drilled a well to a depth of more than 4,000 feet, said drilling being halted by an order" of this court pending the determination of this cause. This appeal is prosecuted by plaintiffs in error, who are persons claiming to be affected by said order. It is earnestly contended that by reason of the abandonment of the appeal of the city of Oklahoma City and J. W. Van Meter, building superintendent, and by reason of the issuance of the permit to drill, this proceeding is moot and has no proper parties appearing as plaintiffs in error. Under the view we take of this case, we find it unnecessary to determine this question, but prefer to determine the same on the merits. Considering the ease on its merits as presented on appeal, we find that the only issue presented was whether or not, under the circumstances and conditions shown, Mr. Larkins was entitled to a drilling permit. A property owner has a right to drill upon his property for the purpose of producing or taking therefrom whatever oil or gas he may find. Such a right passed from the owner of the land to Mr. Larkins through the executed oil and gas lease. In the exercise of his right, Mr. Larkins could locate his well on the leased premises wherever he chose. No private person could complain about the exercise of that right unless the complainant owned an interest in the particular land or lease. Imo Oil & Gas Co. v. Chas. E. Knox Oil Co., 120 Okla. 13, 250 P. 117. An oil and gas well is not a nuisance per se. The authority of the city officials to interfere with the right of Mr. Larkins was limited to the proper exercise of the police power of the city. ‘That power operates when necessary to protect the health, morals, safety, and general welfare of the public. It is derived from the provisions of chapter 178, Session Laws 1923. It does not include the power to prevent waste of natural resources. Section 6170, O. S. 1931, a part of the statute, is as follows: “Eor the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of cities and incorporated villages ^.-is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, and the density of population, and the location and use of buildings, structures and land for trade, industry, residence or 'other purposes.’’ City ordinance No. 3944, enacted pursuant to that statute, does not prohibit drilling. If requires the doing of a certain thing as a prerequisite to the exercise of the right to drill, to wit, the securing of a permit. The issuance of the permit- to drill granted to Mr. Larkins no right which he did not have. It merely removed a restriction that had been imposed by ordinance upon the exercise of a right which he had. The question presented is whether or not the trial court was authorized to remove that restriction. We must look to the provisions of the statute, supra, and ordinance, supra, for the court was not authorized to make an order requiring the issuance of a permit in violation of the provisions of the ordinance and statute. Anderson-Kerr, Inc., v. Van Meter, 162 Okla. 176, 19 P. (2d) 1068. The land on which Mr. Larkins asked for a permit to drill is less in area than the area required by one of the provisions of the city ordinance (section 1, paragraph D), which is as follows: “In the unplatted tracts, no well shall be drilled or put down upon any block or tract of less than five acres in area, and in platted tracts, no such well shall be drilled or put down upon any block of less than two *72 and one-half arces in area, except as otherwise provided.” It is not sufficient in size to permit drilling without a violation of another provision thereof (section 7), which is as follows: “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.” The plaintiffs contend that since the ordinance did not provide for any exceptions, the district court on appeal had no greater authority than the board of adjustment, and that it was without jurisdiction to grant such a permit. Section 0170, O. S. 1931, which is a part of the statute, supra, in part, provides: “Such local legislative body may provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of this act may provide that the said board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained. * * *” The plaintiffs contend that that provision merely gives the local legislative body the authority, by ordinance, to provide for exceptions in approxiriate cases, and that without provision for such exceptions in an ordinance neither the board of adjustment nor the district court has authority to make any exceptions to the requirements of the existing ordinance. That contention would have force if the language of the statute, supra, wore not to the contrary. Section 6170, supra, further provides: “* * * THe board of adjustment shall have the following powers : “(1) To hear and decide axipeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this act or of any ordinance adopted pursuant thereto. “(2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance. “(3) To authorize upon appeal in specif - ic cases such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. “In exercising the above mentioned powers such board may, in conformity with the provisions of this act, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination ax>pealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken. * * *” Those powers are not dependent upon their being stated in the zoning ordinance. 11 is not required that the board of adjustment look to the provisions of any ordinance for authority to reverse or affirm, wholly or partly, or to modify any order, requirement, decision, or determination appealed from, or to make such order, requirement, decision, or determination as ought to be made. The statute confers “all of the powers of the officer from whom the appeal is taken.” Such powers may be exercised in conformity with the provisions of the act. Since the board of adjustment has suc-h authority by reason of the statute, the district court as a court of equity has the same authority on appeal. Much stress is laid in the brief of plaintiffs in error that the tract of land in controversy is a small tract consisting of only .168 of an acre, and that a well drilled thereon will drain oil from an area greatly in excess of said acreage. We want to emphasize the fact, however, that the Legislature, in delegating to certain cities the power to restrict the drilling of wells within the boundaries thereof, was dealing with the police power in so far only as the health, morals, safety, and general welfare of the public might be injuriously affected by such drilling. The Legislature did not confer authority upon cities to prevent the commission of waste of natural resources or to prevent the inequitable taking of oil from a common source of supply. Such authority vs as delegated by other statutory provisions to another tribunal. The question of improper production and inequitable drainage of contiguous lands is not a determining factor in an application for a permit to drill under the terms of the statute and ordinance. ■ Regard must be had only for the public interest in so far as it relates to the protection of the citizens under the authorized exercise of the police power. The findings of the trial court are set forth in the judgment appealed from. The court found: “The court further finds that the property is within the U-7 drilling zone of the city of Oklahoma City and that wells have been drilled on all sides of the proppwv *73 herein involved and that all of the property surrounding the parcel of land herein involved is participating in the production of surrounding wells; that the owners of the parcel of land herein involved have duly and diligently made application to have the parcel of land herein involved attached to adjoining drilling areas in order that said parcel of land might participate in the royalties from the drilling of the wells on the adjacent drilling areas, but that the owners of said property have been denied the right to participate in said production by the board of adjustment of Oklahoma City and by this court on appeal from the board of adjustment of Oklahoma City. * * * “The court further finds that the literal enforcement of the provisions of the ordinance wi 1 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.” In doing so it acted within its authority and jurisdiction, as stated in Anderson-Kerr, Inc., v. Van Meter et al., supra. The facts found constitute a valid basis for the application of the exception made to the provisions of the ordinance. The questions for determination were questions of fact, and since the findings of the trial court are amply sustained by the evidence under the law, they will not be disturbed by this court. The judgment of the trial court i-s in all things affirmed. RILEY, O. J„ CULLISON, V. C. .1. and SWINDALL and BAYLESS, JJ„ concur. ANDREWS, ,T., not participating. Mc-NEILL, BUSBY, and WELCH, J.T., dissent.