Rees v. Panhandle Eastern Pipe Line Co.

• Decision Date: 12 June 1978
• Docket Number: No. 2-376A92,2-376A92
• Citation: 377 N.E.2d 640,176 Ind.App. 597
• Parties: Leland REES and Fannie S. Rees, Appellants (Defendants below), v. PANHANDLE EASTERN PIPE LINE COMPANY, a Delaware Corporation, Appellee(Plaintiff below).
• Court: Indiana Appellate Court

Page 640

377 N.E.2d 640

176 Ind.App. 597

Leland REES and Fannie S. Rees, Appellants (Defendants below), v. PANHANDLE EASTERN PIPE LINE COMPANY, a Delaware Corporation Appellee(Plaintiff below).

No. 2-376A92.

Court of Appeals of Indiana,Second District.

June 12, 1978.

Raymond M. Adler, Webb & Webb, Noblesville, for appellants.

Charles Disque, Thomas A. Withrow, Henderson, Daily & Foxworthy, Indianapolis, Gerald R. Jenkins, Pro Hac Vice, Kansas City, Mo., for appellee.

SULLIVAN, Judge.

Panhandle Eastern Pipe Line Company (Panhandle) filed suit against Leland and Fannie S. Rees (hereinafter referred to as Rees) seeking injunctive relief. After a hearing, the trial court entered an interlocutory order granting a preliminary injunction from which Rees appeals.

Panhandle possesses right-of-way easements for the operation and maintenance of four (4) underground natural gas pipelines across 15.10 acres of wooded tract owned by Rees. These lines are referred to as the G-100, G-200, G-300 and G-400 lines. The G-400 line was created in a prior condemnation action which expressly provided for a width of 66 feet. The other three lines were constructed pursuant to easement grants which did not contemplate specific widths, ¹ but which reserved the right of the dominant owner to operate, maintain and repair the lines.

On June 5, 1975, Panhandle employees were attempting to clear brush and trees from one of the easement right-of-ways when they were approached by Leland Rees. Rees, protesting Panhandle's attempt to extend the width of the easement in excess of the 15 to 25 feet cleared in years past, ordered the employees off the land and threatened violence if they returned. After several unsuccessful attempts to negotiate a settlement with Rees, Panhandle filed this action seeking to enjoin further interference with its clearing activity. The trial court, upon hearing evidence, granted preliminary relief as per the following order:

"ORDER ON PRELIMINARY

"Plaintiff, Panhandle Eastern Pipe Line Company, having filed its Amended Complaint seeking in Counts II and III thereof a preliminary injunction, said Amended Complaint being in the words and figures as follows:

"(H.I.)

"And a hearing on Plaintiff's application for a preliminary injunction having been held on the 4th day of February, 1976, the Court, being duly advised in the premises, finds that:

"1. Pursuant to duly acquired right-of-way easements, Plaintiff operates four (4) pipelines for the high pressure transmission of natural gas over and across a tract of real estate owned by Defendants, Leland and Fannie S. Rees, in Hamilton County, Indiana, (hereinafter referred to as the 15.10 acre tract) more particularly described as follows, to wit:

(description omitted)

"2. Pursuant to said easements, Plaintiff has the right to operate, maintain and repair its pipelines which traverse the 15.10 acre tract.

"3. In order for Plaintiff to operate, maintain and repair its pipelines, it is necessary that Plaintiff periodically clear trees and brush from the surface area above its pipelines over an area up to 33 feet in width on each side of, and along the entire length of, each of said pipelines, except the G-400 line, for which a specific area is expressly defined by the easement condemned for said pipeline;

"4. In order for Plaintiff to operate, maintain and repair its G-400 line, it is necessary that Plaintiff periodically clear trees and brush from the surface area above its G-400 line over the area expressly defined by the easement condemned for said line;

"5. In order for Plaintiff to operate, maintain and repair its pipelines, it is necessary that Plaintiff have access to and ingress and egress to and from its pipelines for the purpose of making periodic ground and aerial inspections of its pipelines, and for the purpose of making any needed pipeline repairs or maintenance;

"6. There is an immediate and impending danger that Plaintiff and the public will suffer irreparable harm if Plaintiff is not allowed to clear trees and brush from the surface area over its pipelines across the 15.10 acre tract, in that Plaintiff cannot otherwise properly inspect its pipelines to discover and guard against, or repair, leaks, encroachments and other dangers which might cause pipeline ruptures and explosions, and thereby result in injury and damage to lives and property and in loss of gas supplies to Plaintiff's customers;

"7. The clearing of trees and brush from the surface area over Plaintiff's pipelines across the 15.10 acre tract will not result in undue loss or inconvenience to Defendants;

"8. The Plaintiff has filed with the Court a bond in the amount of $15,000 as set by the Court to pay costs and damages suffered by Defendants if they be found wrongfully enjoined; and

"9. The Defendants should be enjoined from interfering in any way with Plaintiff's exercise of its right (a) to clear trees and brush from the surface area above its G-100, G-200 and G-300 lines over an area up to 33 feet in width on each side of, and along the entire length of, said lines on the 15.10 acre tract, and (b) to clear trees and brush from the surface area over its G-400 line over the area expressly defined by the easement condemned for said line, and from otherwise interfering in any way with Plaintiff's access to, and right of ingress and egress to and from, its pipelines on the 15.10 acre tract for the purpose of making periodic ground and aerial inspections of its pipelines and for the purpose of doing any needed pipeline repairs or maintenance.

IT IS, THEREFORE, ORDERED that the Defendants, Leland and Fannie S. Rees, and their agents, employees, servants and all persons in active concert and participation with them or claiming under them, pending the trial and determination of this action, are hereby restrained and enjoined from interfering in any way with Plaintiff's exercise of its right (a) to clear trees and brush from the surface area above its G-100, G-200 and G-300 lines over an area up to 33 feet in width on each side of, and along the entire length of, said lines on the 15.10 acre tract; and (b) to clear trees and brush from the surface area over its G-400 line over the area expressly defined by the easement and condemned for said line, and from otherwise interfering in any way with Plaintiff's access to, and right of ingress and egress to and from, its pipelines on the 15.10 acre tract for the purpose of making periodic ground and aerial inspections of its pipelines and for the purpose of doing any needed pipeline repairs or maintenance.

                "Dated: February 5, 1976
                "Signed: V. Sue Shields
                "Signed: "Judge, Superior Court of
                "Signed: "Hamilton County"
                

I. PROCEDURAL ISSUES PRESENTED BY APPELLANT

Rees raises several procedural issues. He first contends that due process of law was denied when (1) testimony by means of affidavit was permitted to be introduced and (2) adequate time was not allowed for examination of the affidavits.

The propriety of allowing testimony to be introduced by affidavit upon application for a temporary, i. e. preliminary, ² injunction is evidenced by the following statutes:

I.C. 34-1-10-3 (Burns Code Ed. 1973) provides:

"Application to be verified. In all applications for an injunction, the complaint, or so much thereof, as pertains to the acts or proceedings to be enjoined, shall be verified by affidavit. The injunction may be granted at the time of commencing the action, or at any time afterwards before judgment in that proceeding."

I.C. 34-1-10-4 (Burns Code Ed. 1973) provides:

"Affidavits may be read. On the hearing of an application for a restraining order or temporary injunction, each party may read affidavits, or documentary or record evidence."

Affidavits will support the issuance of a temporary injunction notwithstanding the fact that no oral evidence was presented. Everett v. Ward (1971) 256 Ind. 94, 267 N.E.2d 174. Furthermore, a temporary injunction may be granted upon the affidavit of the plaintiff alone. Tuf-Tread Corp. v. Kilborn (1930) 202 Ind. 154, 172 N.E. 353; Hardy v. Donellan (1870) 33 Ind. 501.

Rees' contention that he was denied adequate time to examine the affidavits introduced by Panhandle at the hearing has not been preserved for review on appeal. The only specific objection to their introduction was based on the fact that they were "made in Marion County" which, according to Rees, indicated that the witnesses were readily available. No continuance was requested. Furthermore, Rees has cited no authority for his contention, nor has he shown how he was prejudiced by the alleged inadequacy of time.

Rees next contends that his wife, Fannie S. Rees, was improperly named in the order since there was no evidence that she had either interfered or threatened to interfere with Panhandle's easement rights. Generally, defendants who have a common interest and a common defense are properly joined in one suit for injunctive relief. See 43A C.J.S. Injunctions § 184, p. 367. Mrs. Rees, a tenant by the entirety of the land in dispute, is an indispensible party and therefore bound by any substantive determination concerning the land. See Eilts v. Moore (1946) 117 Ind.App. 27, 68 N.E.2d 795. We are cognizant of the fact, however, that all parties to the substantive action are not, because of such status, necessarily subject to temporary injunctive relief granted to preserve the court's ability to render a final determination on the merits. It might well be that Mrs. Rees falls in this latter category. But Rees has failed to show how inclusion of his wife has resulted in any prejudice. Accordingly, we need not reverse upon this ground.

Contrary to Rees' final procedural contention, the order was sufficiently specific to instruct the parties as to the persons enjoined, the purpose of the injunction, and the dimensions and location of the area in question.

II. STANDARD FOR ISSUANCE OF A PRELIMINARY INJUNCTION

The grant or denial of a...