People's Gas Co. v. Tyner

• Citation: 131 Ind. 277,31 N.E. 59
• Parties: People's Gas Co. et al. v. Tyner.
• Decision Date: 27 April 1892
• Court: Supreme Court of Indiana

131 Ind. 277

31 N.E. 59

People's Gas Co. et al.

v.Tyner.

Supreme Court of Indiana.

April 27, 1892.

Appeal from circuit court, Hancock county.

Suit by Elbert Tyner for an injunction against the People's Gas Company and others. From a judgment granting the relief, defendants appeal. Affirmed.

James A. New, Charles Downing, and Asa M. New, for appellants. David S. Gooding, for appellee.

COFFEY, J.

This was an action by the appellee against the appellants in the Hancock circuit court for the purpose of obtaining an injunction. The complaint alleges, substantially, that the appellee and his wife are the owners by entireties of the real estate therein described, which consists of four city lots in the city of Greenfield; that the lots are inclosed together by a fence, and that his dwelling house and residence, in which he and his family reside, is situated on the lots; that the lots are near the center of the city, and, with his residence thereon, are of the value of $4,000; that with full knowledge of all the facts the appellants, regardless of the rights of the appellee and of the safety, peace, comfort, and lives of himself and family, have, without his consent and over his objections, within the last 40 days, dug and constructed a natural gas well to the depth of about 1,000 feet, and about 200 feet distant from the appellee's residence, with only a street 40 feet in width between the appellee's lots and the lot on which the well is sunk; that the appellants are about to “shoot” said well, and will do so unless restrained; that for the purpose of “shooting” the well the appellants, about midnight of the ------ day of August, 1889, unlawfully procured to be brought and unlawfully permitted a large quantity of nitroglycerin or other nitro explosive compound to be and remain upon Sycamore street, a public street in the city, and within less than 200 feet of appellee's residence, for about 3 hours, in the midst of and surrounded by a large number of people; that appellants, by their employes, threatened and attempted to “shoot” said gas well, and that they still threaten so to do, with their said nitroglycerin or other nitro explosive compound, and will do so unless restrained; that nitroglycerin is highly explosive, and very dangerous to property and life, and is liable to explode under any and all circumstances, and at any time or place, and that an explosion of 60 or 100 quarts of said explosive at any given place on the surface of the earth could and probably would destroy life and property for a distance of 500 yards in all directions from such explosion; that the handling or storing thereof in or about appellant's gas well will endanger the lives of his family, as well as the safety of his property, and that the shooting of said well with nitroglycerin will greatly injure and damage the appellee's said property, both above and under the surface of the earth, and endanger his life and the lives of his family. This complaint was verified, and upon it and the affiavits filed in support of its allegations the court granted a temporary injunction, from which this appeal is prosecuted. The affiavits filed by the appellee tended to prove that the appellants' gas well is within the corporate limits of the city of Greenfield; that a short time prior to the filing of the complaint in this cause the appellants deposited in or near the derrick at the well described in the complaint about 117 quarts of nitroglycerin, weighing about 340 pounds, with the intention of exploding the same in the well. The affidavits further tend to show that nitroglycerin is very explosive, and that it is liable to explode at any time; that the explosion of that quantity of nitroglycerin upon the surface of the earth would be likely to destroy life or property at any point within 500 yards of such explosion.

It is contended by the appellants- First, that they had the right to use their own property as to them seemed best, and for that reason they could not be enjoined from exploding nitroglycerin in their well for the purpose of increasing the flow of natural gas, though such explosion might have the effect to draw the gas from the land of the appellee; second, that, as bringing nitroglycerin into the corporate limit of a town or city in a greater quantity than 100 pounds is made a crime by statute, it cannot be enjoined. On the other hand, it is contended by the appellee- First, that natural gas is property, and that the appellants have no legal right to do anything upon their own land which will draw such gas from his land, and appropriate it to their own use; second, that as he is liable to suffer an injury peculiar to himself, to which the public in general is not subject, by the unlawful act of the appellants in bringing nitroglycerin within the corporate limits of Greenfield, he is entitled for that reason to an injunction.

It has been settled in this state that natural gas, when brought to the surface of the earth and placed in pipes for transportation, is property, and may be the subject of interstate commerce. State v. Indiana & Ohio Oil, Gas & Min. Co., 120 Ind. 575, 22 N. E. Rep. 778. Water, petroleum, oil, and gas are generally classed by themselves as minerals possessing in some degree a kindred nature. As to whether the owner of the soil may dig down and divert a well-defined subterraneous stream of water, there is much diversity of opinion and conflict in the adjudicated cases; but the authorities agree that the owner of a particular tract of land may sink a well, and appropriate to his own use all the percolating water found therein, though it may entirely destroy the well on his neighbor's land. Ang. Water-Courses, § 112; Hanson v. McCue, 42 Cal. 303; Wheatley v. Baugh, 25...