Fox v. Ohio Val. Gas Corp.

Citation13 Ind.Dec. 593,250 Ind. 111,235 N.E.2d 168
Decision Date02 April 1968
Docket NumberNo. 468S57,468S57
PartiesWilliam 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, Appellees. Maurice MILLER, Appellant, v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester, Indiana, and McGuire Pipeline Construction Company, Inc., a corporation of Columbus, Indiana, Appellees. Raymond MILLER and Jean Miller, Appellants, v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester, Indiana, and McGuire Pipeline Construction Company, Inc., a corporation of Columbus, Indiana, Appellees.
CourtSupreme Court of Indiana

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

Thompson, O'Neal & Smith, Patrick J. Smith, James R. McClarnon, Indianapolis, amicus curiae for Citizens Gas & Coke Utility.

Hyle G. Burke, Bruce N. Cracraft, Indianapolis, for Indiana Bell Telephone Co. Inc. Jerry P. Belknap, Ralph W. Husted, Marcus E. Woods, Indianapolis, for Indianapolis Power & Light Co.

Paul G. Jasper, Charles W. Campbell, Plainfield, for Public Service Company of Indiana, Inc.

Arch N. Bobbitt, Indianapolis, Attorney for Illinois Bell Telephone Co.

John E. Fell, Kokomo, for Kokomo Gas & Fuel Co.

G. R. Redding, Virgil L. Beeler, Indianapolis, for Indianapolis Water Co.

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

Frederick P. Bamberger, Evansville, for Southern Indiana Gas and electric co.

John F. Bodle, Lafayette, for General Telephone Co. of Indiana, Inc.

Fred F. Eichhorn, Jr., Hammond, William F. Welch, Indianapolis, for Northern Indiana Public Service Co.

George P. Osborn, Marion, for Central Indiana Gas Co., Inc., Greenfield Gas Co., Inc. and Indiana Gas Distribution Corp.

Howard J. Cofield, Indianapolis, for Kokomo Water Works Company, Muncie Water Works Co., Richmond Water Works Corp., The Terre Haute Water Works Corp.

Von E. Livingston, David B. Keller, Fort Wayne, for Indiana & Michigan Electric Co.

Charles M. Wells, Indianapolis, for Indiana Gas & Water Co., Inc.


This case comes to us on transfer from the Appellate Court of Indiana under Acts 1901, ch. 247, § 10, p. 565; 1933, ch. 151, § 1, p. 800, being Burns' Ind.Stat.Anno. § 4--215 (1956 Repl.). See 222 N.E.2d 412 and 228 N.E.2d 42 for opinions of Appellate Court.

This is an appeal from a judgment rendered in favor of appellees' pipe line companies in the Dearborn Circuit Court without a jury in three separate actions for injunctions instituted by each of the appellants, wherein they ask for injunction against the appellee, Ohio Valley Gas Corporation, and appellee, McGuire Pipe Line Construction Company from constructing a gas pipe line upon a county highway right-of-way, the fee of which is owned by the appellants, subject to the easement of the corporations.

The basic facts are uncontroverted in that the appellants own the fee simple title to property which abuts upon Yorkville Road and which is located in Dearborn County, Indiana. The appellee, Ohio Valley Gas Corporation, entered into a contract with the Board of County Commissioners of Dearborn County to lay a pipe line along said right-of-way of the Yorkville Road and along that part of the Yorkville Road of which appellants were the fee simple title holders, subject to the easement. The gas corporation is a public utility organized under the laws of the State of Indiana and engaged in the purchase, transmission, distribution and sale of natural gas to the public located within its territory and is authorized by the Public Service Commission of Indiana to render gas distribution service to rural customers residing within the area of one mile on either side of said proposed pipe line and to customers residing within the city limits of Connersville, Indiana and rural areas adjacent thereto.

The McGuire Pipe Line Construction Company is an Indiana corporation under contract with the appellee, Ohio Valley Gas Corporation, to construct the pipe line in question. The gas corporation claims the right to use the county highway for pipe line purposes pursuant to a contract entered into between the Board of County Commissioners of Dearborn County and the Ohio Valley Gas Corporation pursuant to Acts 1947, ch. 151, § 3, p. 473, being Burns' Ind.Stat.Anno. § 36--718 (1949 Repl.), which reads as follows:

'Pipe line, conduit or drain, laying along or across county highway--Contract for restoration of highway and use thereof--Surtey bond filed with commissioners--Contract not to create easement.--If any person shall desire to lay a pipe line, conduit or private drain, across or along any county highway of this state, such person shall first enter into a contract with the board of county commissioners in each county wherein it is desired to locate such pipe line, conduit or drain, which contract will obligate the owner thereof to restore the county highway to its original condition after the laying thereof and to reimburse the county for the use of such highway. In addition such person shall file with the board of county commissioners a surety bond, payable to the county, in a sum to be set by and to the approval of the board of county commissioners, conditioned upon the performance of such contract. No such contract shall give any person a permanent right or easement to use any county highway but such contract may give the right to use such highway so long as such pipe line, conduit or drain, does not interfere with the alteration, use, abandonment or public enjoyment of such county highway.'

The trial court, in special findings and conclusions of law, denied injunctive relief to the abutting property owners, appellants herein. From this judgment the appeal is taken by the appellants.

The question presented on this appeal is essentially whether or not a public utility duly authorized to transmit gas through a pipe line for public use may construct and lay such pipe line in the public highway without the consent of the abutting land owners who claim that such use is an additional burden and servitude to the fee which is subject to the easement for highway purposes.

In Kincaid v. Indianapolis Natural Gas Company et al. (1890), 124 Ind. 577, 24 N.E. 1066, 8 L.R.A. 602, the Indianapolis Natural Gas Company laid pipe lines in a county road for the purpose of supplying citizens of the City of Indianapolis pursuant to a license granted by the Board of County Commissioners. Judge Elliott, speaking for the court, said in that case (124 Ind. at 579 and 24 N.E. at 1067):

'There is an essential distinction between urban and suburban highways, and the rights of abutters are much more limited in the case of urban streets than they are in the case of suburban ways.'

The court held, however, taht the appellant was not entitled to an injunction to prevent the laying of the pipe lines, but only to an action of damages. In other words, it recognized the public use and necessity involved, and the right to condemn for a public purpose. It has been pointed out that the statement of Judge Elliott in this case with reference to a distinction between urban and sub urban highways is dicta and not essential to the decision made.

Shortly thereafter this Court had before it the case of Magee v. Overshiner (1898), 150 Ind. 127, 49 N.E. 951, 40 L.R.A. 370. The appellants also rely upon this case. In the Magee case, the owner of a telephone system sought to place poles and lines to the streets within the City of Logansport. The abuting property owner along the street where the poles were placed brought an injunction to prevent the use of the street by the telephone system. This Court held, after a considerable discussion of the principles involved, that the placing of poles and lines by a telephone company in city streets was not a new or additional servitude for which abutting property owners were entitled to compensation or complaint. That case repeated the distinction made between county roads, highways and streets within cities. Judge Elliott's publication, The Law of Roads and Streets, 299 (1890) was cited and quoted:

'There is an essential difference between urban and suburban servitudes. The owner of the dominant estate in an urban servitude...

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