Gradison v. Ohio Oil Co.
| Decision Date | 16 February 1959 |
| Docket Number | 29618,Nos. 29583,s. 29583 |
| Citation | 156 N.E.2d 80,239 Ind. 218 |
| Parties | Jules T. GRADISON and Rita Gradison, Appellants, v. OHIO OIL COMPANY, Appellee. Mechel DOTLICH, Margaret Dotlich, Monnie Dotlich, Merko Dotlich, Dorothy C. Dotlich, Sammy Dotlich, Mary Kathryn Dotlich, Appellants, v. OHIO OIL COMPANY, Appellee. |
| Court | Indiana Supreme Court |
Johnson & Weaver, Indianapolis, for appellants in Gradison case.
Dann & Backer, Indianapolis, for appellants in Dotlich case.
Charles M. Wells, Thomas M. Scanlon, Indianapolis, Joseph F. Diver, Terre Haute, Barnes, Hickam, Pantzer & Boyd, Indianapolis, of counsel, for appellee.
These two cases were consolidated for briefing and oral argument and are so treated in this opinion.
This is an action brought by the appellee against the appellants to condemn an easement for right of way across certain real estate owned by the appellants in Marion County, Indiana, for a pipe line for the transportation of petroleum and petroleum products.
The appellee is an Ohio corporation. It was admitted to do business in Indiana in 1901. It transports petroleum products through its pipe lines from various shippers and consignees, including Socony, Sinclair, Phillips, Rock Island and Standard of Indiana. The petroleum products originate outside Indiana and are delivered at points in Indiana.
The appellee operates as a common carrier under the jurisdiction of the Interstate Commerce Commission. Its original line ran from Wood River and East St. Louis, Illinois, to Clermont, Indiana. The appellees desire to take land for an extension from Clermont to Speedway City. At Speedway City there is a connection with the line of the Buckeye Pipe Line Company which transports products east to Muncie, where some deliveries are made, and from that point there is transportation into the State of Ohio.
The issues were formed by appellee's complaint to condemn the easement across appellants' real estate and objections filed thereto by the appellants. The issue here raised and questioned is the right of the Ohio Oil Company, a foreign corporation, to condemn Indiana real estate for the construction of its proposed pipe line extension. The trial court decided all issues in favor of the Ohio Oil Company and entered a judgment appointing appraisers.
The appellants' position and argument is stated under two main points:
(1) 'The condemnation statute does not authorize appellee to condemn Indiana real estate for the construction of its proposed pipe line' mainly for the reason that the general condemnation act of Indiana, under which the appellee brings its action, is not broad enough in scope to encompass the type and manner in which appellee conducts its business.
(2) 'The Indiana General Corporation Act does not confer the benefits of the condemnation statute upon appellee' because it is a foreign corporation.
With these contentions are certain subsidiary points which we shall discuss as they arise.
The right of a foreign corporation to exercise the power of eminent domain is in derogation of the common law and can exist only by virtue of an affirmative grant of power. The power may be granted to certain domestic corporations and denied to like foreign corporations by a state. 23 Am.Jur., Foreign Corp., sec. 186, p. 172.
A pertinent part of the Eminent Domain Act of the State of Indiana reads as follows:
'Appropriation and condemnation of lands and easements in lands by certain corporations.--Any corporation organized under the law of the state of Indiana, authorized by its articles of incorporation to furnish, supply, transmit, transport or distribute electrical energy, gas, oil, petroleum, water, heat, steam, hydraulic power or communications by telegraph or telephone to the public or to any town or city, or to construct, maintain or operate turnpikes, toll bridges, canals, public landings, wharves, ferries, dams, aqueducts, street railways or interurban railways for the use of the public or for the use of any town or city, is hereby authorized and empowered to take, acquire, condemn and appropriate land, real estate or any interest therein, for carrying out such purposes and objects together with all accommodations, rights and privileges deemed necessary to accomplish the use for which the property is taken, including the right to construct railroad siding, switch or industrial tracks connecting its plant or plants or facilities with the tracks of any common carrier.' Acts 1929, ch. 218, § 1, p. 800, being § 3-1713, Burns' 1946 Repl.
Since this statute relates solely to corporations organized under the laws of the State of Indiana, standing alone, it does not aid the appellee unless there are other statutes equalizing the position of foreign corporations with domestic corporations in this state.
The appellee in this endeavor cites a number of acts, some in force at the time it was admitted to do business in Indiana in 1901, and certain other statutes since enacted. We do not need to set them out here verbatim, since we do not feel they are helpful in the solution of the problem. One of these to which our attention is directed is Section 1 of Chapter 171 of the Acts of 1897, page 263, repealed by Acts 1929, ch. 215, § 73. We point out that it is limited to corporations 1948 Repl.
These acts all seem to be negative in character, restricting and limiting foreign corporations to no greater powers than those of domestic corporations without positively granting any privileges to them. In construing the statutes we must keep in mind the principle that there must be some statutory authority for a foreign corporation to exercise the power of eminent domain, and, if granted, such powers must be strictly construed. Indianapolis Oolitic Stone Co. v. Alexander King Stone Co., 1934, 206 Ind. 412, 190 N.E. 57; 18 Am.Jur., Eminent Domain, Sec. 26, p. 650; Sutherland on Statutory Construction, Vol. 3, § 6504, p. 249.
In examining the Indiana General Corporation Act of 1929, ch. 215, however, we find therein a section (Section 57 (§ 25-302, Burns' 1948 Repl.)) in the nature of an equalizing clause that puts foreign corporations on the same basis as domestic corporations. This section, after reciting certain exceptions not pertinent here, states:
'Except as hereinabove provided, a foreign corporation admitted to do business in this state shall have the same, but no greater, rights and privileges, and be subject to the same liabilities, restrictions, duties and penalties, now in force or hereafter imposed upon domestic corporations of like character, and to the same extent as if it had been organized under this act to transact the business for which its certificate of admission is issued.'
It appears to us that it was the intention of the legislature under the Indiana General Corporation Act of 1929, in the above section, to equalize foreign corporations admitted to do business in this state with domestic corporations 'of like character, and to the same extent as if it had been organized under this act * * *.' Under this section a foreign corporation authorized to do business in this state could exercise the power of eminent domain if a like domestic corporation were given such privilege. Acts 1929, ch. 218, § 1, p. 800, being § 3-1713, Burns' 1946 Repl.
Section 67 (Burns' § 25-312) further brings within the benefits of Section 57 (Burns' § 25-302) foreign corporations authorized to do business in the state at the time the Indiana General Corporation Act becomes effective. It states:
'Foreign corporations entitled to transact business in this state at the time this act becomes effective (except banking, surety, trust, safe deposit, railroad, insurance and building and loan corporations), shall be entitled to all of the rights and privileges, and shall be subject to all the limitations, restrictions, liabilities and duties, prescribed herein for foreign corporations admitted to transact business in this state under this act.'
In 17 Fletcher Cyclopedia Corporations (Perm.Ed.), § 8360, p. 186, it is said:
'When the statute of a state provides that, upon compliance with the law, the secretary of state shall issue a permit to a foreign corporation to do business in such state, and that 'such corporation shall have and enjoy all the rights and privileges conferred by the laws of this state on corporations organized under the laws of this state,' a foreign corporation which has secured from the state such a permit may exercise the right of eminent domain in the state, in all cases when corporations created under the laws of the state may exercise such power.' (Citing various authorities.)
Howard v. Illinois Cent. R. Co., 1907, 186 Ind. 88, 115 N.E. 50, involved a condemnation action by a foreign corporation. Section 3 of the Acts of 1861, ch. 78, p. 151 (§ 55-2203, Burns' 1951 Repl.) under which it purported to act provided that when a part of a railroad was located in Indiana and another part in another state and the same becomes vested in a corporation of such other state:
'* * * said corporation may exercise and enjoy within this state * * * all the powers, rights, faculties, privileges, immunities and franchises enumerated in section second of this act, * * *.'
Section second of the act (Burns' § 55-2202, 1951 Repl.) provided:
'Such...
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