Kincaid v. Indianapolis Natural Gas Company
| Decision Date | 25 June 1890 |
| Docket Number | 15,404 |
| Citation | 24 N.E. 1066,124 Ind. 577 |
| Parties | Kincaid v. The Indianapolis Natural Gas Company et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Sept. 17, 1890.
From the Hamilton Circuit Court.
Judgment affirmed.
J. A New, S. E. Urmston, R. R. Stephenson and W. R. Fertig, for appellant.
A. F Shirts, M. Vestal, T. J. Kane and T. P. Davis, for appellees.
The board of commissioners of Hamilton county granted the Indianapolis Natural Gas Company the right to lay pipes in a free gravel road constructed under the statute of this State at the expense of the land-owners. The appellant is an abutting owner in fee of land along the line of the highway. Prior to the time this suit was brought the company had constructed a system of gas-works, and had laid in the highway a line of pipes for the purpose of supplying the citizens of the city of Indianapolis and others with natural gas. In the prosecution of this work the company had expended many thousands of dollars. To make the system effective, and to successfully supply gas, as it had undertaken to do, it became necessary for the company to extend its line of pipes so as to connect its main line and system with additional gas wells which it had drilled and of which it was the owner. This it was undertaking to do at the time the appellant sued out the injunction issued in this case. The trial court dissolved the temporary injunction, and refused to grant a perpetual injunction. From this judgment the appellant prosecutes his appeal.
The license granted by the board of commissioners was effectual to convey the right of the county, such as it had, in the highway, but it did not affect private property rights. Burkam v. Ohio, etc., R. W. Co., 122 Ind. 344, 23 N.E. 799.
The owner of the fee in a suburban highway has a special proprietary right distinct from that of the public, and this right can not be taken without compensation. In a case decided in 1855 it was held that abutters have a private right distinct from that of the public, which even the Legislature can not take away except to appropriate to a public use upon payment of compensation. Common Council, etc., v. Croas, 7 Ind. 9. This doctrine has been steadily adhered to by this court. Haynes v. Thomas, 7 Ind. 38; Cox v. Louisville, etc., R. R. Co., 48 Ind. 178; Pettis v. Johnson, 56 Ind. 139; State v. Berdetta, 73 Ind. 185; Ross v. Thompson, 78 Ind. 90; Cummins v. City of Seymour, 79 Ind. 491; City of Logansport v. Shirk, 88 Ind. 563; City of Indianapolis v. Kingsbury, 101 Ind. 200 (211); Terre Haute, etc., R. R. Co. v. Bissell, 108 Ind. 113, 9 N.E. 144; Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N.E. 761; City of Lafayette v. Nagle, 113 Ind. 425.
The rule declared by our own cases is in harmony with the very ancient and well settled rule that the public acquires, except in cases where the seizure of the fee is authorized, nothing more than a right to pass and repass, and the great weight of authority sustains the doctrine laid down by our decisions.
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. We note the distinction between the classes of public ways, and declare that the servitude in the one class is much broader than it is in the other, but it is not necessary to here mark with particularity the difference between the two classes of public ways, for we are here concerned only with suburban ways.
Subject to the right of the public the owner of the fee of a rural road retains all right and interest in it. He remains the owner, and, as such, his rights are very comprehensive. Brookville, etc., Co. v. Butler, 91 Ind. 134; Shelbyville, etc., T. P. Co. v. Green, 99 Ind. 205; Dovaston v. Payne, 2 H. Bl. 527; Peck v. Smith, 1 Conn. 103; Trustees, etc., Society v. Auburn, etc., R. R. Co., 3 Hill 567.
That the appellant has a special private interest in the land upon which the highway is located, which can not be taken from him without compensation, is quite clear upon principle and authority.
The appropriation of the land for a rural highway did not entitle the local officers to use it for any other than highway purposes, although they did acquire a right to use it for all purposes legitimately connected with the local system of highways. A use for any other than a legitimate highway purpose is a taking within the meaning of the Constitution, inasmuch as it imposes an additional burden upon the land, and whenever land is subjected to an additional burden the owner is entitled to compensation. The authorities, although not very numerous, are harmonious upon the proposition that laying gas pipes in a suburban road is the imposition of an additional burden, and that compensation must be made to the owner. Bloomfield, etc., Co. v. Calkins, 62 N.Y. 386; Bloomfield, etc., Co. v. Calkins, 1 T. & C. (N. Y.) 549; Bloomfield, etc., Co. v. Richardson, 63 Barb. 437; Sterling's Appeal, 111 Pa. 35; Webb v. Ohio Gas Fuel Co., 16 Weekly L. Bulletin, 121.
The same principle is declared in the cases which hold that drainage pipes can not be laid in rural highways except for public drainage purposes connected with the system of highways. Murray v. Gibson, 21 Ill.App.Ct. 488; Indiana, etc., R. R. Co. v. Hartley, 67 Ill. 439; Board of Trade, etc., Co. v. Barnett, 107 Ill. 507. The cases to which we have referred are well reasoned and are founded on solid principle. We have no hesitation in concluding that the laying of the pipes in the highway was a taking of the appellant's property within the meaning of the Constitution, and that he is entitled to compensation.
It does not follow, however, that a land-owner entitled to compensation for property appropriated to a public use can always maintain injunction. It remains, therefore, to inquire and decide whether the appellant can maintain this suit, for if he is not entitled to an injunction he can not succeed.
The use to which the line of the highway was appropriated was a public one. There can be no doubt that the work of supplying cities with natural gas is a public one for which property may be appropriated under the right of eminent domain. State, ex rel., v. Indiana, etc., Mining Co., 120 Ind. 575, 22 N.E. 778; Carothers v. Philadelphia Co., 118 Pa. 468, 12 A. 314; Pennsylvania Natural Gas Co. v. Cook, 123 Pa. 170, 16 A. 762; Johnston's Appeal, 7 A. 167.
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Kincaid v. Indianapolis Natural Gas Co.
... ... Appeal from circuit court, Hamilton county; D. Moss, Judge.J. A. New, S. E. Urnston, and Stephenson & Fertig, for appellant. Kane & Davis, for appellees.Elliott, J.The board of commissioners of Hamilton county granted to the Indianapolis Natural Gas Company the right to lay pipes in a free gravel-road constructed under the statutes of this state at the expense of the land-owners. The appellant is an abutting owner in fee of land along the line of the highway. Prior to the time this suit was brought the company had constructed a system of gasworks, and ... ...