Consumers Gas Trust Co. v. American Plate Glass Co.

• Decision Date: 24 November 1903
• Docket Number: 19,730
• Citation: 68 N.E. 1020,162 Ind. 393
• Parties: Consumers Gas Trust Company v. American Plate Glass Company et al
• Court: Indiana Supreme Court

68 N.E. 1020

162 Ind. 393

Consumers Gas Trust Company v. American Plate Glass Company et al

No. 19,730

Supreme Court of Indiana

November 24, 1903

Rehearing Denied March 31, 1904.

From Superior Court of Madison County; H. C. Ryan, Judge.

Suit by Consumers Gas Trust Company against the American Plate Glass Company and another. From a judgment for defendants plaintiff appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

W. H H. Miller, J. B. Elam, J. W. Fesler, S.D. Miller, J. T. Dye and Carey Cowgill, for appellant.

S. N. Chambers, S. O. Pickens and C. W. Moores, for appellees.

OPINION

Gillett, C. J.

This action was instituted by the Consumers Gas Trust Company to enjoin the American Plate Glass Company and the Cleveland, Cincinnati, Chicago & St. Louis Railway Company from drilling a natural gas well on, and laying a gas-main along, that part of a railroad right of way which extends through section six, township twenty-one, range eight, in Madison county, Indiana. The cause was put at issue, and after a trial the court rendered a finding and decree in favor of said gas company, restraining the defendants below from drilling such well, but the court denied the relief prayed relative to the laying of the gas-main. Each of the parties to the action filed a motion for a new trial, and has assigned error on appeal.

At the time of the institution of this action the gas company had a written lease, of date October 26, 1896, which purported to grant to it for an indefinite time the exclusive right to drill gas-wells and lay pipes for the transportation of gas in a certain 400-acre tract of land in said section, which land, as described, covered said right of way. The lease was executed by the persons who had the record title to the entire tract. When this suit was instituted the gas company had a number of producing wells on said land, without the limits of said right of way. The railroad was built by the Cincinnati, Wabash & Michigan Railway Company about 1871. The right of way through the tract of land mentioned was fenced by said company about the year 1877, and it has since maintained said fences. Its entry upon the land was made without color of title, and over the protest of the holders of the record title. The landowners have not sought to have their damages assessed. The company has occupied the land with a single track railroad and a line of telegraph poles since its entry. Its possession has been continued without interruption since that time, and such possession appears to have been hostile. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company has been using said railroad for a number of years, under an operating agreement with the Cincinnati, Wabash & Michigan Railway Company, and at the time this suit was instituted the American Plate Glass Company was engaged in drilling a gas-well on, and laying a line of gas-main along, the right of way through said section, under and by virtue of a lease with said operating company. It appears from the evidence that such is the character of the particular gas field that the sinking of a well into the gas reservoir within two miles of a producing well will appreciably reduce the flow of such well, and that the injury to it would be still greater if the new well were in close proximity.

The lease of the gas company was sufficiently broad to vest in it the exclusive right to sink gas-wells in said 400-acre tract; but, as said Cincinnati, Wabash & Michigan Railway Company was in the possession of and using said right of way for railroad purposes at the time of the execution of said lease, it is evident that the gas company was charged with notice of whatever rights said railway company had; and it is also clear that, to the extent of a conflict between the terms of the gas company's lease and the right of said railway company, it must be held that the rights of the latter are paramount.

Assuming, without deciding, that the glass company was invested with whatever of right the Cincinnati, Wabash & Michigan Railway Company had, we proceed to consider whether the latter company had a fee, or only an easement in said right of way.

It is true that said railway company might have acquired the fee by grant, and that a title by adverse possession is as good as the best title known to the law, yet, unless all distinction in the law of adverse possession between the acquirement of the fee in land and the acquirement of an easement therein is to be lost sight of, consideration must be given to the nature of the user. The soundness of a title is one thing, the extent of it is quite another. A prescriptive right, where there is no color of title, cannot be broader than the claim which the user evidences. Brookville, etc., Co. v. Butler, 91 Ind 134; Peoria, etc., R. Co. v. Attica, etc., R. Co., 154 Ind. 218, 56 N.E. 210; Indianapolis Water Co. v. Kingan & Co., 155 Ind. 476, 58 N.E. 715. Ordinarily, at least, there is no user by a railroad company beyond a user for the purposes of a right of way. A corporation which is organized under the general railroad statute is authorized to condemn only an easement; if it enters without title and constructs its main line, the landowner cannot eject it, but is confined to the...