Great Western Natural Gas & Oil Co. v. Hawkins

• Decision Date: 11 March 1903
• Parties: GREAT WESTERN NATURAL GAS & OIL CO. v. HAWKINS et al.
• Court: Indiana Appellate Court

30 Ind.App. 557

66 N.E. 765

GREAT WESTERN NATURAL GAS & OIL CO.

v.HAWKINS et al.

Appellate Court of Indiana, Division No. 1.

March 11, 1903.

Appeal from Circuit Court, Delaware County; Joseph G. Lefler, Judge.

Condemnation proceedings by the Great Western Natural Gas & Oil Company against Lewis M. Hawkins and others. From an adverse judgment, said company appeals. This cause was transferred from the Supreme Court under the provisions of the act of March 12, 1901 (Acts 1901, p. 565). Affirmed.

Forkner & Forkner, for appellant. Warner & Brady, for appellees.

ROBINSON, J.

Appellant filed in the office of the clerk of the Delaware circuit court its instrument of appropriation, averring that it is a corporation organized under the laws of Indiana for the purpose of drilling and mining for petroleum and natural gas, and otherwise acquiring gas and petroleum wells and the products thereof, and to furnish the same to its patrons for use within this state, and by manufacture to convert the same into gas for fuel and illuminating purposes, and other articles of commerce, and digging trenches and laying pipes for the purpose of conducting gas to its patrons within this state; that it gives notice of its desire and intention “to enter upon, use, hold, and appropriate the fee-simple interest, subject to the rights of the public therein as a public highway, as and for a right of way for its pipe line, of the following described lands”: A strip one rod wide off the west side of a certain quarter section, “being so much of said tract not exceeding one rod in width as lies within the public highway now located thereon and abutting on the center line of said highway; that said real estate is necessary for the use of said company for its pipe line and connections therewith in the construction of the same from the city of Muncie north to the gas wells and territory owned by said company in the northern part of said county of Delaware”; that Lewis M. Hawkins owns the fee of the land, subject to the rights of the public in the highway; that the lands are occupied by Jacob Hawkins, who claims some interest therein, and the Manufacturers' Gas & Oil Company claims some interest therein, but in fact have no right, title, or interest in the land; that appellant has not agreed with the parties, and is and has been unable to agree with them, for the purchase of the land, or touching the damages sustained by reason of the use and appropriation of the same.

Notice having been given, and the instrument of appropriation submitted to the circuit court at a regular term, for the appointment of appraisers, appellees excepted to the instrument of appropriation, and denied the power of the court to take any further action, for the reasons, among others, that the instrument of appropriation does not show that the appropriation is desired for the purposes for which the right of eminent domain may be invoked under the statute, and that it is sought to condemn the fee simple of the real estate, and not a mere easement. For the purposes of this opinion, it is unnecessary to set out all the objections made to the application. Some of these objections tender issues of law, while others tender issues of fact. The manner of raising objections apparent upon the face of the instrument of appropriation is not uniform in all jurisdiction. The same result may be reached by different methods. 2 Lewis, Em. Domain (2d Ed.) § 389. The proceeding is in its nature a special statutory one, and while it is not, in the strict sense, an ordinary civil action, yet the provisions of the Civil Code as to matters of practice may be called to the aid of such statute. Lake Shore, etc., Ry. Co. v. Cincinnati, etc., Ry. Co., 116 Ind. 575, 19 N. E. 440.

Upon the hearing the court refused to appoint the appraisers, and from that action of the court this appeal is prosecuted.

The statute, section 5103, Burns' Rev. St. 1901, upon which the proceeding is based, provides: “That whenever any company, corporation or voluntary association incorporated under the laws of the state of Indiana, or which may hereafter be incorporated thereunder, for the purpose of drilling and mining for petroleum or natural gas, or otherwise acquiring gas or petroleum wells and the products thereof, and to furnish the same to its patrons for use within this state, and by manufacture to convert the same into gas for fuel and illuminating purposes, and other articles of commerce, shall desire to dig trenches and lay pipes for the purpose of conducting gas to its patrons within this state, or conducting gas from its wells, or wells leased by it, or from its manufactory to any point within this state, such company shall possess” certain powers, among them the power of eminent domain.

By section 5104, such company, if unable to purchase real estate required for the construction of its trenches and laying of mains and connecting pipes, is given the right to acquire an easement for such purpose in and upon such land. Section 5105 provides that such a proceeding shall be instituted by depositing, “with the clerk of the circuit or other court of record in the county where the line lies, a description of the rights and interests intended to be appropriated, and an easement in such land, right and interest shall belong” to such company “for the purpose specified,” upon payment or tender of payment as provided. Provision is also made that, if the company and landowner cannot agree touching the damages, the company shall deliver to the owner, within the county, “a copy of such instrument of appropriation,” or, if the owner does not reside in the county, the company shall publish in a newspaper “an advertisement reciting the substance of such instrument of appropriation.” Upon filing “such act of appropriation,” and delivering a copy or making publication, the court or judge thereof in vacation shall appoint appraisers to appraise the damages sustained by such appropriation, who shall report to the court, and either party may appeal therefrom as is provided in respect to railroads.

Section 5105 follows closely the language used in section 5160 concerning proceedings to appropriate land for railroads, and proceedings in both cases are governed by the same rules. Consumers' Gas, etc., Co. v. Huntsinger, 12 Ind. App. 285, 40 N. E. 34.

The statute concerning proceedings to appropriate land for railroads, sections 5159, 5160, and 5164, Burns' Rev. St. 1901, the same being sections 14, 15, and 17 of an act approved May 11, 1852 (1 Rev. St. 1852, pp. 414-416, c. 83); and section 399 of the Code (section 402, Burns' Rev. St. 1901), the same being section 102 of an act approved June 18, 1852 (2 Rev. St. 1852, p. 50, c. 1); and section 896 of the Code of Procedure, touching the writ of assessment of damages (section 908, Burns' Rev. St. 1901), the same being section 697 of an act approved June 18, 1852 (2 Rev. St. 1852, p. 191, c. 1)-are to be construed in pari materia. Swinney v. Ft. Wayne, etc., R. Co., 59 Ind. 205;McMahon v. Cincinnati, etc., R. Co., 5 Ind. 413.

It is first argued by appellant's counsel that the court had no jurisdiction at the stage of the proceedings involved to entertain any exceptions; that the court had no jurisdiction to act judicially, but only ministerially, and to determine in a ministerial way, upon the face of the instrument of appropriation, whether appellant was a de facto corporation, and whether the proceedings were regular upon their face.

The question raised is one of practice, and seems never to have been expressly settled in this state. The propriety of the exercise of the right of eminent domain is a question exclusively legislative, but the proceedings in the exercise of the right may be before such body or tribunal as the Legislature may designate. Whether such a proceeding is, strictly speaking, a civil action, or a special proceeding, only quasi judicial in its nature, it is clear that a proceeding to condemn land is an adversary proceeding. A condition precedent to the appointment of appraisers is a delivery of a copy of the instrument of appropriation to the landowner, if a resident of the county; or, if a nonresident or unknown, the publication for three weeks, in a newspaper, of the substance of the instrument of appropriation. The Legislature has provided that this notice be given the landowner at the inception of the proceedings, instead of after the appraisers have been appointed and made their report. If he cannot be heard to object to the proceedings until after the appraisers have been appointed and reported, there could be no reason for giving him any notice until that time. It has been held under the railroad act that “the filing of the act of appropriation and service of a copy upon the owner of the land is notice to the party of the pendency of a suit.” Ney v. Swinney, 36 Ind. 454.

The power of eminent domain-the right to appropriate the private property of the citizen to a public use without his consent- guarded as carefully as it can be, has been characterized by the Supreme Court as a “very high and dangerous one,” and that no restriction for the better protection of the property owner should be disregarded unless the very words of the statute require it. Lake Shore, etc., Ry. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578, 19 N. E. 440. It is doubtless true that these questions could be raised at a later stage of the proceedings. But the right of the corporation to maintain the proceedings at all is a question logically preliminary to the appointment of the appraisers. The power exists only by virtue of some statute. And the statute not only designates the corporation to which the power has been delegated, but it also limits the purpose for which the power can be exercised. If the corporation is not such as the statute designates, or if it seeks to condemn for purposes not designated in the statute, or has failed to perform any condition precedent...