Fox v. Ohio Val. Gas Corp.

• Decision Date: 27 July 1967
• Docket Number: No. 1,No. 20341,20341,1
• Citation: 228 N.E.2d 42,141 Ind.App. 408
• Parties: William FOX and Juanita Fox, George Fox and Mildred Fox, Appellants, v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester, Indiana, and McGuire Pipeline Construction Company, Inc., a corporation of Columbus, Indiana. Maurice MILLER v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester, Indiana, and McGuire Pipeline Construction Company, Inc., a corporation of Columbus, Indiana. Raymond MILLER and Jean Miller v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester, Indiana, and McGuire Pipeline Construction Company, inc., a corporation of Columbus, Indiana, Appellees
• Court: Indiana Appellate Court

Page 42

228 N.E.2d 42

141 Ind.App. 408

William FOX and Juanita Fox, George Fox and Mildred Fox, Appellants, v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester,

Indiana, and McGuire Pipeline Construction

Company, Inc., a corporation of

Columbus, Indiana.

Maurice MILLER v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester,

Indiana, and McGuire Pipeline Construction

Company, Inc., a corporation of

Columbus, Indiana.

Raymond MILLER and Jean Miller v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester,

Indiana, and McGuire Pipeline Construction

Company, inc., a corporation of

Columbus, Indiana, Appellees.

No. 20341.

Appellate Court of Indiana, Division No. 1.

July 27, 1967.

Cecil C. Tague, Sr., Roger H. Smith, Brookville, for appellants.

Ewbank & Meyer, Lawrenceburg, Paul D. Lawson, Columbus, Mendenhall, Hunter & Stohler, Winchester, for appellees.

ON PETITION FOR REHEARING

CARSON, Presiding Justice.

We have examined the petition for rehearing filed by the plaintiff-appellants. We conclude that no new questions are presented for our consideration by this petition. We would point out that the questions raised by the petition are new and additional points not adequately covered or presented to this court for consideration in the original appeal. A careful consideration of the points raised in the appellants' original brief indicates that the questions presented in the petition for rehearing were not presented to this court by cogent argument and the application of authorities.

We have considered the petition for rehearing filed in the above matter by the appellee, Ohio Valley Gas Corporation. We find no merit to the argument contained in the petition. The petitioner, appellee, contends that we have overruled a ruling precedent of the Supreme Court of Indiana in the case of Magee v. Overshiner (1898), 150 Ind. 127, 49 N.E. 951, 40 L.R.A. 370. We would call attention to the fact that the Magee case involved a public way in a municipality and Indiana has made a distinction in applying the rule between roads and ways in a municipality and those in rural communities.

While this distinction has been criticized in other jurisdictions, we are nevertheless obligated to follow the law as it is in Indiana and we do not pass upon the wisdom of the distinction. We should also like to call attention to the fact that a very exhaustive opinion on a similar question to that presented in the instant case, was decided by the Court of Appeals of New York in the case of Heyert v. Orange & Rockland Utilities, Inc. (1966), 17 N.Y.2d 352, 271 N.Y.S.2d 201, 218 N.E.2d 263.

We shall not burden this opinion with extracts from that case since it covered eight printed pages, but we would invite attention to the language used by the court on page 211 of 271 N.Y.S.2d on page 270 of 218 N.E.2d the opinion: (Judge Keating, concurs in a separate opinion).

'I agree that the order appealed from should be affirmed...