Northern Indiana Public Service Co. v. Darling

• Decision Date: 22 December 1958
• Docket Number: No. 29672,29672
• Citation: 239 Ind. 237,154 N.E.2d 881
• Parties: NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellant, v. Phillip H. DARLING and Julia W. Darling, Husband and Wife, Arthur J. Miller and Estelle J. Miller, his Wife, Appellees.
• Court: Indiana Supreme Court

Page 881

154 N.E.2d 881

239 Ind. 237

NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellant, v. Phillip H. DARLING and Julia W. Darling, Husband and Wife, Arthur J. Miller and Estelle J. Miller, his Wife, Appellees.

No. 29672.

Supreme Court of Indiana.

Dec. 22, 1958.

Rehearing Denied Feb. 19, 1959.

George E. Hershman, Crown Point, Lawyer, Friedrich, Petrie & Tweedle, Hammond, for appellant.

Frederick C. Crumpacker, Valparaiso, for appellees.

EMMERT, Justice.

This is an appeal from a judgment for $7,000 plus interest, entered on a verdict for appellees on their exceptions to the report of appraisers in an eminent domain proceeding. The appraisers awarded appellees $800 for an easement for a high pressure gas pipeline, plus $1,200 as damages to the residence of the land owned by the Darlings. The Millers were mortgagees. The error assigned is overruling appellant's motion for a new trial, which charged 27 separate causes of alleged errors.

The Darlings owned 72.46 acres of land about 2 1/2 miles southeast of Hobart in Lake County. Approximately 40 acres lie north of Haven Hill Road, and the easement, which is 49.5 feet wide, runs through this tract from the northwest to the southeast for a distance of 1788.6 feet. The remaining 32.46 acres of the tract lie south of the Haven Hill Road. The Darlings bought the tract in July or August of 1954 for $40,000.

It was assumed at the time of trial that the taking of the easement was on August 31, 1955. On October 14, 1955, appellant paid to the clerk the amount of the award of $2,000. The trial was begun on January 9, 1956, and the verdict returned three days later. By the latter time, a 16 inch high pressure gas line had been laid approximately 30 inches deep, but not all the grading was completed. There was room to run another gas line south of the one installed, and the complaint stated the intended use was for gas mains or lines. Pursuant to § 2-2014, Burns' 1946 Replacement, the jury, before verdict visited the lands involved.

On the tract was located a two-story horse barn, 40 by 85 feet, which was not more than 150 feet west of the pipeline; a seven-room modern dwelling, not more than 250 feet from the pipeline. There was also a two-car garage, a chicken house 25 by 150 feet, and a hog house about 30 by 40 feet in size.

An engineer for the appellant testified in substance that the walls of this 16 inch line were 5/16 of an inch thick, and that the manufacturer tested each length with 1400 pounds air pressure; that the appellant would likely operate it at 160 pounds, but later it might go up to 600 pounds; and that appellant planned testing it for 750 pounds water pressure, which could not be done in the winter time. He further testified that some lines of appellant were inspected once a month, others might be once every six months; that the operating department of appellant would walk it more often in the winter; that a leak would be more visible on the snow than in vegetation, and that there is a possibility of leaks in a gas line like this; when a leak is found it is repaired; that when there is a leak there is a chance of fire; that he did not know of any actual explosions 'in gas lines.'

Mr. C. E. Wade, a licensed real estate broker of Haven Hill Road testified that the year before there had been an explosion in connection with the Michigan Wisconsin pipeline near Chesterton, in which five men had been killed; that based on his experience as a broker dealing with easements for pipelines conveying natural gas, there was a possibility of fire or explosions of the gas, which had a depreciating effect upon the market value of the Darling property. Two other witnesses for the appellees testified as to the adverse effect of a gas line on the value of the real estate.

'Courts take judicial knowledge of the fact that natural gas is a highly inflammable and explosive substance. In diana Natural Gas and Oil Co. v. Jones, 1895, 14 Ind.App. 55, 42 N.E. 487; Jamieson v. Indiana Natural Gas and Oil Company, 1891, 128 Ind. 555, 28 N.E. 76, 12 L.R.A. 652; Mississinewa Mining Co. v. Patton, 1891, 129 Ind. 472, 28 N.E. 1113.' Public Service Co. of Indiana v. Dalbey, 1949, 119 Ind.App. 405, 415, 85 N.E.2d 368, 372. We also take judicial notice that when the ground is frozen, a leak from a gas main may go underground for many feet and finally escape into buildings where it may cause fires and explosions. The jury had the right to infer that the possible danger from fire or explosions, even though it might not happen on the Darling property, did lessen the market value of the residue of the real estate. Therefore, there was no error in giving appellees' requested instruction No. 5, which is set forth in the note. ¹

Nor was there any error in permitting various witnesses to testify that the possibility of fire and explosions, as well as the location of the line, had an adverse effect on the market value of the property.

Appellant asserts it was error for the court to refuse to give its requested instructions numbered 6, 7, 9, and 14. If the subject matter was adequately covered by other instructions given by the court, there was no error in refusing each. 'This necessarily requires examination of all instructions given. They are not all in the brief. Therefore we cannot consider the question as to whether the court committed reversible error in refusing * * *' the instructions tendered by appellant. Wilson v. State, 1953, 232 Ind. 365, 368, 369, 111 N.E.2d 709.

'The great weight of authority holds that evidence of the price paid, by way of a voluntary sale and purchase near the time the lands were appropriated, for other lands similarly situated in the immediate neighborhood, is competent on the question of the value of the lands taken.' [Citing cases and authorities.] Illinois Central R. Co. v. Howard, 1925, 196 Ind. 323, 325, 326, 147 N.E. 142, 143, 148 N.E. 413. 'If the land taken has a higher market value by reason of a use or uses for which it may be adapted, but to which it has not been put, the owner of the land is entitled to the market value, as so enhanced. If a tract of land adjacent to a populous and growing city has always been used for farming purposes, but is clearly available for residential purpose, the fact that it had never been put to this purpose but had been used as farm land would not prevent a value being placed upon it for residential purposes, and the owner would be entitled to the market value as enhanced for this purpose, if so enhanced.' State v. Hamer, 1936, 211 Ind. 570, 578, 199 N.E. 589, 592. Under...