Richmond Natural Gas Co. v. Clawson

• Decision Date: 21 December 1900
• Citation: 155 Ind. 659,58 N.E. 1049
• Parties: RICHMOND NATURAL GAS CO. v. CLAWSON.
• Court: Indiana Supreme Court

155 Ind. 659

58 N.E. 1049

RICHMOND NATURAL GAS CO.

v.CLAWSON.

Supreme Court of Indiana.

Dec. 21, 1900.

Appeal from circuit court, Wayne county; H. C. Fox, Judge.

Action by Charles H. Clawson for an injunction against the Richmond Natural Gas Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John F. Robbins and Thomas J. Study, for appellant. A. C. Lindemuth, for appellee.

JORDAN, J.

Appellee successfully prosecuted this action in the lower court to enjoin appellant from shutting off his supply of natural gas from his residence situated in the city of Richmond. The errors assigned are based upon overruling appellant's demurrer to the complaint, denying its motion for a new trial, and upon exceptions reserved to the several conclusions of law stated by the court upon its special finding of facts. The special finding of facts discloses substantially the following: The Richmond Natural Gas Company was incorporated on the 5th of March, 1886, under the laws of this state, and obtained a franchise or privilege from the city of Richmond, Wayne county, Ind., granting the said company the right to lay under its streets, alleys, and avenues, etc., its gas pipes and mains for the supply of natural gas to said city and the citizens thereof, subject to the conditions and regulations in the ordinance set out and provided. One of the objects for which said company seems to have been incorporated was to supply consumers of the city of Richmond and in the vicinity with natural gas. Section 1 of the ordinance of the city under which the franchise was granted to appellant gas company reads as follows: “Be it ordained by the common council of the city of Richmond, that the Richmond Natural Gas Company of said city be, and is hereby, granted the right to lay under the surface of such of the streets, alleys, lanes, avenues and thoroughfares in said city as may be necessary therefor gas pipes and mains for the supply of natural gas to said city and the citizens thereof, subject to the conditions and regulations hereinafter set out and provided.” Section 9 of the same ordinance is as follows: “Any and all residents of said city shall have the absolute right to use the gas along the lines, mains and pipes laid by said company hereunder, and no regulations respecting tapping or connections with said mains or pipes by citizens shall be made which do not apply alike to all citizens. And in case said company shall not make and publish reasonable regulations permitting any and all citizens to tap their mains and pipes for the purpose of taking gas therefrom for the use of said person or company, then and in any such case the common council of said city shall have power and authority hereunder to authorize any such person, company or corporation, on application to said council, to tap said pipes under the supervision and direction of the civil engineer of said city. All right of tapping mains and pipes hereunder shall be subject to the payment by the person, company or corporation tapping the same of such rates as are fixed by said company for the general use of such gas, or by agreement of such person and said company.” Appellant duly accepted in writing the provisions and conditions of the ordinance heretofore mentioned on the 15th day of March, 1886, and thereafter, in the month of December, 1888, began to supply natural gas to the consumers of the city of Richmond, and from that time on it has continued to furnish, and is still furnishing, natural gas to consumers of that city. For the first two years from the time appellant began to furnish natural gas to consumers in the city of Richmond, it furnished the same through mixers, but thereafter the company put in meters, and supplied its consumers, when requested, with gas by meter measurement, and has so continued, and it now has from 1,200 to 1,300 patrons who pay for the natural gas consumed by meter measurement at so much per 1,000 cubic feet. In the year 1893, and up to the date of the commencement of this action, appellant was notified by divers of its patrons in said city at the time they applied to it for meters that they desired to and intended to use natural gas for illuminating purposes as well as for heating their houses, and with a full knowledge and notice of such fact appellant supplied and put in the meters so requested, and the consumers thereafter used and consumed natural gas both for illuminating and heating purposes continuously, and appellant received and accepted pay from its patrons for gas which had been consumed for both heating and light. The rate of gas so consumed up to the 1st day of October, 1897, was fixed by the gas company at the uniform rate of 12 1/2 cents per 1,000 cubic feet. Appellant received payment at such rates from its consumers with the knowledge that gas had been consumed for both heating and illuminating purposes; and appellant, with such knowledge, took no steps or action to prevent the use of such natural gas by its patrons for illuminating purposes. The price charged by appellant for gas supplied by it to any and all of its consumers, other than manufacturers, by meter measurement, after it adopted, as heretofore stated, that method, up to the 1st day of October, was 12 1/2 cents per 1,000 cubic feet, whether said gas was used for heating alone or for both heat and light. Consumers which were classed as domestic included all residences, stores, etc. On the 1st day of September, 1897, appellant company adopted and promulgated the following notice, to wit: “Notice to Consumers of Natural Gas. Beginning October 1st, 1897, the rate for natural gas, when used for fuel and light, will be 20 cents per 1,000 cubic feet. When used for fuel only, the rate will be the same as heretofore, 12 1/2 cents per 1,000 cubic feet. Richmond Natural Gas Company.” Appellee, Clawson, is now, and has been for more than 25 years last past, a bona fide resident of the city of Richmond, Wayne county, Ind., and has occupied, and still occupies, for more than 5 years last past, a dwelling house and residence situated in said city, No. 42 North Seventh street, with his family, consisting of himself, his wife, and two children. Prior to the time appellee began using natural gas supplied by the defendant by meter measurement, he had been one of appellant's patrons, and had used and consumed its gas for heating purposes through mixers. In September, 1896, he fitted and caused to be fitted by an experienced plumber his house with necessary gas pipes, fixtures, and Welsbach burners for the purpose of using and consuming the said natural gas of the defendant for illuminating purposes in his said house, as well as for heating the same. A short time before piping his said residence and fitting the same up for the use of natural gas for both heating and light, appellant furnished appellee with a meter and placed the same in his residence, and made the proper connections for consuming its gas by meter measurement, for which meter appellee paid appellant the sum of $15. Thereafter appellee consumed and used the gas supplied to him by appellant for both heating and lighting purposes in his residence, consuming the same for heating purposes in two stoves and one grate, and for lighting in three rooms by single jets, which were furnished with Welsbach burners; and thereafter appellee paid appellant monthly the uniform rate of 12 1/2 cents for each 1,000 feet of natural gas used and consumed by him for heating and lighting, as shown by said meter. On the 1st day of September, 1897, appellee received from appellant the notice adopted by it, as heretofore set out, in respect to the change in the rate of gas when used for both fuel and illuminating purposes. About the 1st day of October, 1897, appellee called at the office of appellant in the said city of Richmond, and notified it that he was using gas for both heating and lighting in his residence by meter measurement, and that he desired to continue to use gas for such purposes; stating that he was willing to pay 20 cents per 1,000 cubic feet for gas for lighting purposes and 12 1/2 cents per 1,000 feet for heating purposes, but that he objected and refused to pay 20 cents per 1,000 feet for such gas when used for both heat and light. Appellee at that time demanded of appellant that it furnish him with a separate meter with which to measure the gas used and consumed by him for light, to be measured separate and apart from that used by him for heat, and tendered to appellee the sum of $15, the same being the price charged by it for meters. Appellant refused this request of appellee, and thereupon the latter asked the permission and consent of appellant to put in such separate meter for himself, which permission appellant refused to give. Appellee thereafter continued to use and consume natural gas furnished him by appellant for both heat and light during the said month of October, 1897. On the 1st day of November, 1897, he received from appellant a statement of gas consumed by him during said month of October, and was charged therefor at the rate of 20 cents per 1,000 cubic feet; making a total of $3.80. On the 2d or 3d day of November, 1897, appe...