Capitol Airways v. Indianapolis Power & Light Co.

• Citation: 18 N.E.2d 776,215 Ind. 462
• Decision Date: 31 January 1939
• Docket Number: 27141.
• Court: Supreme Court of Indiana
• Parties: CAPITOL AIRWAYS, Inc., v. INDIANAPOLIS POWER & LIGHT CO.

18 N.E.2d 776

215 Ind. 462

CAPITOL AIRWAYS, Inc., v. INDIANAPOLIS POWER & LIGHT CO.

No. 27141.

Supreme Court of Indiana

January 31, 1939

Appeal from Superior Court, Marion County; Jos. R. Williams judge.

Miller Miller & Bredell, of Indianapolis, for appellant.

John G. McNutt, John E. Scott, and Elmer Scott, all of Indianapolis, for appellee.

FANSLER Judge.

The appellant operates and maintains an airport and commercial flying field adjacent to the City of Indianapolis. The appellee, a public utility, acquired a private right of way for the construction of an electrical transmission line upon property which is across a highway from the land upon which the appellant operates its business, and constructed a power line consisting of steel towers about 90 feet in height and about 400 feet apart, to which were strung electric wires for the transmission of 132,000 volts of electricity. The appellee's power line parallels the land upon which appellant's business is located upon the east and is from 100 to 250 feet from the boundary of appellant's land.

The appellant brought this action alleging the facts above recited; that the wires of the appellee's power line are uninsulated; that its flying field is so small that airplanes may not land or leave the field without flying low over adjacent land; that the transmission line constitutes an obstruction for airplanes approaching plaintiff's airport from the southeast, east, and northeast, and leaving in the same direction; that in addition to the danger and hazard of airplanes colliding with the wires, there is the additional hazard and danger of destruction from the high and dangerous current of electricity carried in the wires; that these dangers will cause the operators of airplanes to discontinue using the appellant's field; that this constitutes an interference with the plaintiff's right to the free use of the space over its airport, and that it constitutes an interference with and a destruction of the plaintiff's established business; that as a result plaintiff was damaged in the sum of $150,000.

A demurrer to the complaint was sustained, upon which ruling appellant predicates error.

It is appellant's theory that section 20-304, Burns' Ann.St.1933, section 10090, Baldwin's Ind.St.1934, requires 'that in the transmission and use of electricity of a dangerous voltage, full and complete insulation shall be provided at all points where the public or any employees of the owner, contractor or subcontractor transmitting or using said electricity are liable to come into contact with the wire or wires'; that the maintenance of the appellee's power line, which is uninsulated, is therefore unlawful, since the general public traveling in airplanes is liable to come in contact with the wires.

Webster defines the word 'insulate' as follows: '1. To make an island of. 2. To place in a detached situation, or in a state of isolation; to isolate; specif.: a Physics. To separate from conducting bodies by means of nonconductors, as to prevent transfer of electricity or heat.' The appellee's power line is erected upon its private property, upon wires suspended from towers high above the ground. It is a matter of common knowledge that the purpose of this type of power line construction is to isolate the wires, to put them in a detached situation, and to separate them from conducting bodies. This, then, is insulation. The only...