Phelps v. Theime

217 P. 376, 92 Okla. 8

• Court: Supreme Court of Oklahoma
• Decided: July 24, 1923
• Docket: 13997
• Status: Published

Opinion

Opinion by

MAXEY', C.

This case has given us much concern, as to just what dis/position should be made of it. The city, was in a position where it was necessarily compelled to widen the street and make a fill in the low place and pave it to prevent accidents which were quite common at that place on account of the narrowness of the street at this low place; and there is no question but that the city has been greatly benefited by Phelps deeding to it the strip of land, above mentioned, and making the fill and doing the necessary paving. Phelps testified that it cost him between $2,500 and $3,000 to make the necessary fill and pave that part of the street. This also was done at his expense and as a part of the consideration for the place to erect a filling station on the dead end of Military avenue. Plis right to erect this filling station and operate it is all the consideration that he received from the land he conveyed to. the city and the work he did in filling the street and paving it; and if he is compelled to remove his filling station, the city may be liable to him for the value of the strip of land conveyed and the cost of making the fill and paving the street, which question we do not decide at this time, so it may be seen that this lawsuit might, in all probability, be followed by one of Phelps against the city. The Choate Oil Corporation, which is operating the filling station, may have rights in the premises which will have to be adjusted.

The whole trouble comes from Theime not making Phelps and the city parties defendant in the first suit. He knew of the arrangements between Phelps and the city, because it is a matter of record and he should have proceeded against the Choate Oil Corporation, Phelps, and the city, in- . stead of proceeding against the tenant of-Phelps alone. In this Way, the whole matter could have been settled in that suit. It appears from the testimony that Theime requested the city to bring the original action, but the city declined to do it.

This is an equitable action and the court has ample power .to bring in all necessary parties and settle the whole controversy in this suit. St. Germain defines “Equity” as follows: “Equity is a right wiseneth that eonsidereth all of the particular circumstances of the case and is also tempered with the sweetness of mercy.” We think this is a proper place to apply those equitable principles; and entertaining these views, the judgment -of the court denying the injunction in this case should be reversed, and set aside, and enforcement of the judgment obtained by Theime against the Choate Oil Corporation, in s» far as it affects this property, should be enjoined, and it Was error for the trial court to refuse to grant the injunction.

The case is, therefore, reversed and remanded to the trial court, with directions to grant the injunction against the enforcement of the judgment recovered by Theime against the Choate Oil Corporation.

By the Court: It is so ordered.