Ajax Pipe Line Co. v. Southwest Electric Co-op. ( 1953 )

REEVES, Chief Judge.

Each of the parties enjoys an easement for specified purposes over the real estate belonging to Alvin T. Tidlund and Lorene I. Tidlund, husband and wife. The plaintiff’s easement is for a pipe line transporting crude oil.

There was a break in the pipe line whereby both the plaintiff and the property owners sustained losses or damages. It is claimed by the plaintiff here that the defendant was responsible for the break and consequent losses and damages by reason of its negligence in the use of its easement in setting its electric light poles. Because of the break the property owners have sued the plaintiff in a state court. Such action has not resulted in a judgment and at the present time Count II of plaintiff’s petition is necessarily speculative, although, before this case is tried, the claim in the state court may ripen to a judgment. In such case, if plaintiff should be cast, it would be entitled to claim this additional damage from the defendant. The remedy of the parties here is to have the property owners brought into the case as plaintiffs, and this could be done under Rule 19, Federal Rules of Civil Procedure, 28 U.S.C.A., by making the property owners involuntary plaintiffs, if otherwise they decline to appear. Or plaintiff in the state case could interplead the defendant here as a third party defendant there.

In the meantime the motion to dismiss Count II should be overruled.