Consumers' Gas Trust Co. v. Huntsinger ( 1895 )

Ross, C. J.

The appellant sued the appellees to recover damages for tearing up and destroying a line of pipes laid by it along a highway in Madison county, to connect its main line with certain gas wells. The venue of the cause was changed to the Hancock Circuit Court where issues were joined, a trial had and a general verdict returned in favor of appellees. With their general verdict the jury returned answers to numerous interrogatories submitted to them. The court rendered judgment on the general verdict in favor of the appellees.

The first paragraph of the complaint charges that the plaintiff was engaged in producing and supplying natural gas to a large number of cousumers in the city of Indianapolis, and had laid its pipe line through that city, and through Marion and Hamilton counties, and into Madison county; that in the course of its business it had laid a continuous line of pipe one-half mile in length in Stony Creek township, in Madison county, for the main line, for the purpose of using it as a connecting line between the main line and several new wells which the plaintiff had previously drilled, and which it was necessary to connect with the main line in order to supply its patrons; that the defendants “wrongfully, unlawfully, and forcibly broke said half mile of pipe line in pieces, completely destroying the same, ” to plaintiff’s damage in the sum of $25,000.00.

By the second-paragraph of its complaint the appellant alleged' that it was engaged in drilling wells and procuring and furnishing natural gas to consumers in the city of Indianapolis, and had a continuous line of pipe from said city to, and into, Madison county; that on or about the 21st day of August, 1891, appellant had laid a continuous line of pipe in Stony Creek township, in Madison county, for a half mile, for the purpose of connecting the north and south end of its existing lines, and which said connecting line was necessary to be laid in order to connect ten new wells, which appellant had drilled on the north end of its main pipe line, and transpoi’t the gas from said new wells, through its pipe line, to its consumers in the city of Indianapolis; that on said day the appellees wrongfully, unlawfully and maliciously broke up, twisted, destroyed and rendered worthless, and took, carried away, and converted to their own use, said half mile of pipe line of the value of $2,000.00, etc.

To the complaint the appellees filed an answer in three paragraphs. The first paragraph was a general denial, and the second and third set up matters in confession and avoidance.

The third paragraph is as follows:

“And for a third and further answer herein to each paragraph of complaint, defendants say that they admit that defendants herein, Enoch Delph, Grant Gwinn, George Huntsinger, and Enoch Delph took and removed plaintiff’s gas pipe line from the public highway, as charg'ed in the complaint herein, but defendants say that plaintiff is a corporation organized and doing business by virtue of the law of the State of Indiana, and is engaged in drilling natural gas wells in Madison county, Indiana, and piping the gas from said wells in pipe lines through said county to the city of Indianapolis in said State; that on the 21st day of August, 1891, the plaintiff, with a large force of men, entered upon one of the public highways of said Madison county, and, without any leave or license or authority from anyone, did lay down, upon and along said public highway a continuous line of six inch gas mains or pipe line for a length and distance of about sixty (60) rods, thereby creating a public nuisance; that said pipe so taken up and removed was not connected with and did not form a continuous line through which the gas was then being or had been conveyed, but consisted of about sixty (60) rods of pipe connected together on the surface of said highway, that it was the intention of plaintiff to dig trenches and lay said pipe in and along said highway, and convey the natural gas from some eight or ten gas wells to the city of Indianapolis, thereby subjecting said pipe lines to a greater pressure than 300 pounds to the square inch; that Matilda Harless and-Eobinett are the owners of the real estate abutting on and along the west side of said highway, on and along which plaintiff laid its said gas pipe line, and are the owners of the fee in said highway .to the center of same, and of that part thereof upon which said pipe was lain, subject only to* the rights of the public to travel upon the same; that by so digging said trenches and the laying of said pipe line on said highway, which plaintiff was intending to do on the west side of the center of said highway so owned by said Matilda Harless and others as aforesaid, said plaintiff was placing a perpetual encumbrance on their said land without their authority or consent and over their protest and objection, and without having the damages first assessed and paid or tendered to said owners; that at the request ,of the owners of said land — they being women and unable to do so — to remove said pipe, the defendants, Enoch Delph, Grant Gwinn, George Hunt-singer and John Bogers, did, on the day charged in plaintiff’s complaint, with due care and with as little damage as possible, remove said pipe line from said highway and off the land of said Matilda. Harless and others; that this is the trespass complained of and none other, and as to the remaining defendants, the defendants, herein deny each and every allegation in the complaint. ”

While the appellant has assigned as error in this court the overruling of the demurrer to the third paragraph of the answer, and the sustaining of the demurrer to the second paragraph of its reply, they have not been argued, and are therefore waived.

The facts in brief, as we gather them from the record and briefs of counsel as applicable to the issues, are that the appellant was engaged in furnishing natural gas to. a large number of consumers in Indianapolis, through its system of pipe line in that city, and had extended its main lines through Marion and Hamilton counties, and into Madison county; and, in August, 1891, had laid a branch line along the north side of a highway which runs in a northeasterly direction through the lands of one Matilda Harless to a point on the west side of a highway which runs north and south along the east side of the Harless land, this branch having been built to connect the main pipe line with some new wells. No right had been acquired by appellant to lay $his branch line along the- highway over the Harless land, either through the board of commissioners of Madison county or the owners of the Harless land. Appellant’s agent did talk with Matilda Harless and say he would pay for the right to lay the line, and she informed him she would do whatever her neighbors did, but she granted no right and no money or other consideration was ever given for a right. The same day that this branch line was laid across the Harless land, the appellees as the agents of Matilda Harless, at her instance and by her command, tore up and removed that part of the line which had been laid over her land along the highway.

The contentions of appellant’s counsel are: first, “that appellant had the unqualified right under the fifth subdivision of section 1, of the act of February 20, 1889 (acts of 1889, page 24), to lay its pipe line along this highway;” and, second, “that appellant had the right to lay its pipe line along the public highway without the aid of the act of 1889.”

The fifth subdivision, which relates to the powers of voluntary associations formed for the purpose of piping petroleum and natural gas, reads as follows: “To dig its trenches, to lay its pipe lines over, across or under any stream of water, watercourse, road, highway or railroad, so as not to interfere with the free use of the same, which the route thereof shall intersect, in such manner as to afford security for life or property. And wherever the hoard of county commissioners of the proper county shall so direct, said trenches and pipe lines may be constructed and laid along the right of way of any road or highway, but in all cases where said trenches or pipe lines shall he laid across, upon or along any gravel road, road or highway thus intersected, said company, corporation or voluntary association shall immediately upon the laying of any such pipe restore the same to its former state, or in a sufficient manner not to have unnecessarily impaired its usefulness or injured its franchises.”

Counsel concede that no authority is conferred by any statute to condemn a right of way along public highways as against the abutting property owners; but that the Legislature, having unlimited control, exercised its prerogative by passing the act of 1889, supra, granting to gas companies the right to build their lines over and across highways, without either the consent of the board of county commissioners or of the abutting land owners.

It is well settled in this jurisdiction that the owner .of land abutting on a public highway is the owner of the fee to the middle of such highway and that the right of the public is simply an easement affording a passage over and along the same. Haslett v. New Albany Belt, etc., R. R. Co., 7 Ind. App. 603, and cases cited.

And it is equally well settled that such abutting owner has a special proprietary right in the highway separate and distinct from that of the general public, and that this right cannot be taken or impaired without compensation. Haslett v. New Albany Belt, etc., R. R. Co., supra. And this right the Legislature cannot take away except to permit its appropriation to a public use, and then only upon the payment of compensation. Lostutter v. City of Aurora, 126 Ind. 436 (12 L. R. A. 259), and cases cited.

We think the above statute clearly authorized the construction of pipe lines across highways without the consent of the board of county commissioners, but when a line was to be laid along a highway, the company had no right to lay it except it first acquired permission from the board of commissioners.

Whether or not an easement, authorizing the use of a highway for passage, carries with it the right to go below the surface and appropriate and use the fee itself "by laying pipes for water and gas and excavating and constructing sewers and drains, we need not now •consider and decide, for appellant does not contend that it acquired permission from the board of commissioners to lay its line along -said highway beneath the surface.

The building of natural gas lines and thus supplying the fuel to the public is a matter of general public interest, and for the public good, hence it comes within the purview of that class of rights known as public rights, to which all individual rights must subserve, hence the legislature may provide a manner for the taking of individual property to be converted and used for the purpose of laying and operating such lines for the benefit of the general public, but only upon the payment of compensation. While the rights of the public are paramount to those of an individual, the constitution affords the latter protection in that his property shall not be taken even for the public good except he be compensated therefor.

The easement for road purposes which grants to the general public the right to pass and repass over a man’s land does not carry with it a right to use it for other purposes not legitimately connected with the use of highways. The building of a pipe line along a highway does not come within the uses for which highways were intended. It has been decided by our Supreme Court, following the decisions of other courts of last resort, that the laying of gas pipes along a highway is the imposition of an additional burden upon the fee from that embraced in the easement for road purposes, and that compensation must be made to the owner of the fee. Kincaid v. Indianapolis Nat'l Gas Co., 124 Ind. 577 (8 L. R. A. 602).

It is evident, therefore, that the appellant company, although engaged in a public enterprise, had no right to appropriate private property without compensation. And it is no excuse to say that because it is engaged in such an enterprise and has expended large sums of money in putting in its plant and extending its pipe lines, it can summarily enter upon the lands of another without right, and lay its lines, and thus acquire the right to maintain them. When it entered upon the lands of Matilda Harless without her permission, it was unlawfully there, and she had a right not only to expel appellant’s servants who were engaged in the unlawful work therefrom, but she had the right also to tear up and remove the pipes which they had placed upon her land. In order to do this, she might call to her assistance any person who might be willing to assist, and those thus assisting could incur no liability except they used unnecessary force or violence in doing the same.

The evidence in this case falls far short of establishing acquiescence on the part of Matilda Harless to the laying of appellant’s pipe line upon her property, on the contrary it shows that she emphatically refused such permission. True the record discloses that on cross-examination she testified in answer to a question put to her to ascertain whether she had refused to sell a right of way, that she would not take any pay, but would give her consent only in the event her neighbors gave theirs. The language used by the witness, taken in conjunction with her other testimony in which she repeatedly stated that she refused to grant permission to appellant to lay its gas pipe line across her land, is susceptible of but one logical meaning, namely, that if her neighbors permitted appellant to build its line across their property, she would do likewise.

Filed January 15, 1895.

If we were to accept counsel’s contention as established by the evidence, it would force us to say that she consented simply because she did not by force prevent appellant’s servants from laying the pipes. On the contrary, we think, she did all and more than was necessary, for she not only refused to grant permission, but forbade the pipes being laid. Had she by her own acts consented or acquiesced in the laying of the pipe line .and its use in supplying gas to consumers, the rights of the public would have intervened, and it would have been unlawful for her to have torn up and removed the pipes, and her remedy would have been to proceed to recover damages for the taking, but no such rights had attached, neither had she by her passiveness acquiesced, hence no rights accrued as against her. It cannot, therefore, be said that she was guilty of laches, for she exercised the speediest and most effective way of asserting her rights and protecting her property from a wrongful appropriation.

The answers of the jury to the interrogatories were insufficient to overrule the general verdict, hence there was no error in overruling appellant’s motion for judgment thereon.

Other objections are urged relative to the exclusion of evidence offered, instructions given and refused, but, on a careful examination of the record, we think no material or harmful error was committed against appellant.

Judgment affirmed.