Central Ky. Natural Gas Co. v. Huls

• Decision Date: 29 May 1951
• Citation: Central Ky. Natural Gas Co. v. Huls, 241 S.W.2d 986, 28 A.L.R.2d 621 (Ky. 1951)
• Parties: CENTRAL KENTUCKY NATURAL GAS CO. v. HULS et al.
• Court: Supreme Court of Kentucky

Page 986

241 S.W.2d 986

28 A.L.R.2d 621

CENTRAL KENTUCKY NATURAL GAS CO. v. HULS et al.

Court of Appeals of Kentucky.

May 29, 1951.

Rehearing Denied Sept. 28, 1951.

Lewis A. White, Mt. Sterling, for appellant.

Redwine & Redwine, Winchester, for appellee.

LATIMER, Judge.

Appellant, Central Kentucky Natural Gas Company, is now and has for many years been engaged in the business of producing, transporting and distributing natural gas. The gas is produced or procured from storage fields in eastern Kentucky and transported by high pressure transmission lines to various towns in central Kentucky for distribution and sale.

The particular transmission line involved in this action runs from Winchester through Clark and Fayette counties to Lexington. Prior to the laying of this pipe line, the gas company procured rights of way from land owners along the route. Such right of way was acquired over the lands of L. C. Gay, which embraces the farm now owned by appellees. By this instrument the gas company was granted 'the right of way to lay, maintain, operate and remove a pipe line for the transportation of gas on, and through my lands * * * with ingress and egress to and from the same.' The grantor retained the right to himself, his heirs or assigns, 'to fully use and enjoin the said premises except for the purpose herein before granted to the Central Kentucky Natural Gas Company,'.

It was further agreed that the gas company could at any time lay an additional line of pipe along the side of the first and also have the right to change the size of its pipe. It was also agreed that the lines be buried so as not to interfere with farming purposes. A ten inch pipe line was laid. This line now carries gas of a pressure of 285 to 300 pounds per square inch.

In 1945 appellees acquired the Gay farm above and later sold a portion of it to the Winchester Tobacco Warehouse Company for the purpose of erecting a sales warehouse thereon. The proposed site for the warehouse was over appellant's pipe line. In order not to interfere with the terms of appellant's easement, appellees requested a relocation of the pipe line. Appellees executed and delivered to appellant a right of way for the purpose of this change. It was provided in this grant of right of way 'the right to relocate, maintain, operate and remove a portion of this pipe line as follows * * * together with the right of ingress and egress to and from said right of way and said gas line for all proper purposes, together with all the rights and privileges granted by the original right of way dated November 16, 1905. It is agreed that the gas line to be laid under this grant shall be constructed and maintained below cultivation so that grantors may fully use and occupy the premises subject to the rights of the grantee to maintain and operate said line.'

Pursuant to this agreement the pipe line was relocated and the tobacco warehouse was built. Appellees thereafter undertook to construct a restaurant building across and over the pipe line as relocated.

The gas company brought this action seeking to enjoin the erection of this restaurant building over its high pressure transmission line. Motion for temporary injunction was denied. Upon final submission of the case upon its merits, permanent injunction was denied and the petition dismissed. From that judgment this appeal is prosecuted.

The Chancellor apparently took the view that the restaurant building was only a temporary construction...