The Consumers' Gas Trust Company v. Harless
| Decision Date | 08 January 1892 |
| Docket Number | 16,334 |
| Citation | 29 N.E. 1062,131 Ind. 446 |
| Parties | The Consumers' Gas Trust Company v. Harless et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 29, 1892.
From the Madison Circuit Court.
Judgment reversed, with directions to overrule the demurrer of the appellees to the appellant's answer.
W. P Fishback, W. P. Kappes, R. N. Lamb, R. Hill, R. Graham, H. D Thompson, for appellant.
M. E. Forkner and H. C. Ryan, for appellees.
This was an action by the appellees against the appellant, in the Madison Circuit Court, to enjoin it from entering upon, digging trenches and laying gas pipes in certain real estate belonging to the appellees, described in the complaint. The complaint alleges that the appellant is a corporation organized under the laws of the State of Indiana, and is engaged in leasing lands, drilling gas wells and piping natural gas to the city of Indianapolis, and supplying the same to private consumers; that it is threatening to, and is about to, and has entered upon the land of the appellees particularly described, has torn down their fences and is now digging great trenches in the same, and is laying down a six-inch gas pipe line upon and across said land, and is about to, and is threatening to connect said pipe line with some of its gas wells, and connecting the same with another line of pipes running to the city of Indianapolis; that it entered upon said land and did, and is about to, do the things above set forth without any leave or license from the appellees, and against their protest and over their objections, never having paid or tendered to them the damages that would accrue to them by reason of said acts; that the acts of the appellant, if not restrained and enjoined, will work great and irreparable damage and injury to the appellees.
To this complaint the appellant filed an answer consisting of one paragraph. The answer admits the ownership of the land in the appellees, the incorporation of the appellant under the laws of the State, and that it is engaged in leasing land, digging gas wells and piping natural gas to the city of Indianapolis to supply private consumers. It avers that it is supplying, for heating and illuminating purposes, forty thousand people in that city with natural gas, who are dependent upon it for such supply, and that it has contracts with such consumers obligating itself to furnish them with natural gas for fuel; that it has main lines leading from the city of Indianapolis northwardly through the counties of Marion and Hamilton into Madison county to near the south line of appellees' land; that it has leased lands lying north of appellees' land and has drilled ten gas wells and laid its gas pipe lines connecting with said gas wells north of appellees' land down to and running along the highway through a part of appellees' land with their full knowledge and acquiescence, leaving a space of only sixty rods through appellees' land necessary to connect appellant's pipe line from the city of Indianapolis with its line connecting with said wells; that being unable to agree with the appellees for a right of way through their land it filed in the circuit court of Madison county its notice and act of appropriation and condemnation of a right of way to lay its pipe line through said land, and thereupon said court appointed three disinterested freeholders of Madison county as appraisers to view the premises and assess the damages that would accrue to the appellees by reason of said act of appropriation and condemnation of a right to lay its pipe through said land; that the appraisers were duly sworn and assessed the damages that would accrue to the appellees by reason of the appropriation at the sum of six hundred dollars, and filed their report thereof in said court; that thereupon the appellant paid said sum and the costs of said award and filed its exceptions to the report of the appraisers, on the ground that the damages so assessed were unreasonable and excessive, and within ten days after the filing of said report the appellant appealed from said assessment to the Madison Circuit Court, where the same is still pending, and said sum of six hundred dollars is still in the hands of the clerk of said court to abide the result of such appeal; that it paid said sum under protest, and notified the clerk to hold the same pending such appeal; that after perfecting said appeal, as it had the right to do, it entered on said right of way so appropriated, and no other, to lay its said pipe line, and was proceeding to lay the same on, in and along its said right of way so acquired when this action was commenced, and that all the acts done, or threatened to be done, by the appellant were done and proposed to be done under and in accordance with said act of appropriation and condemnation proceedings, and not otherwise; that the appellees appeared in said condemnation proceedings and resisted the same; that the appellant acquired its leases and drilled its wells lying north of said land at an expense of fifty thousand dollars, and that it is necessary to connect said wells with its line south of said land in order to utilize the gas therefrom and furnish a sufficient supply for its consumers, and that it will suffer great and irreparable loss if enjoined from using its right of way through the lands of the appellees.
The circuit court sustained a demurrer to this answer, and, the appellant refusing to answer further, the appellees had a perpetual injunction. This ruling of the court is assigned as error.
The appellees contend that the above ruling of the Madison Circuit Court is justified on five several grounds, namely:
First. Because the act of February 20th, 1889 (Acts of 1889, p. 22), under which the condemnation proceedings, set up in the answer were had, is void because it is in conflict with section 23, article 1, of our State Constitution.
Second. Because the payment of the amount assessed as damages into the clerk's office without first tendering the same to the appellees, gave no right of entry.
Third. Because to give a right of entry under the statutes of the State, the tender of payment to the clerk of the court must be unconditional, and a tender upon condition that it shall not be received by the land-owner, or with instruction not to pay it over to such owner, gives no right of entry.
Fourth. Because, if the law is to be so construed as to confer the right of entry upon payment of the assessed damages to the clerk of the court, without tender to the land-owner, it is in conflict with section 21, article 1, of the State Constitution.
Fifth. Because the statute in question is in conflict with section 8, article 1, of the Constitution of the United States.
Section 23, article 1, of the State Constitution, provides that "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens."
It is claimed that the act of February 20th, 1889, supra, is in conflict with this constitutional provision because it grants to companies, corporations or voluntary associations under the laws of this State, for the purpose of drilling and mining for petroleum or natural gas and furnishing the same to patrons within this State, the right to condemn and appropriate land for the purpose of laying their pipes, and does not grant to such companies, corporations or associations engaged in furnishing petroleum and natural gas to customers without the State the same right.
The right to take private property for public use, without the consent of the owner, is called the right of eminent domain and belongs alone to the sovereign. It embraces all cases where, by the authority of the State and for the public good, the property of the individual is taken, without his consent, for the...
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