The Portland Natural Gas And Oil Company v. State ex rel. Keen

• Decision Date: 26 September 1893
• Docket Number: 16,293
• Citation: 34 N.E. 818,135 Ind. 54
• Parties: The Portland Natural Gas and Oil Company v. State, ex rel. Keen
• Court: Indiana Supreme Court

34 N.E. 818

135 Ind. 54

The Portland Natural Gas and Oil Company v. State, ex rel. Keen

No. 16,293

Supreme Court of Indiana

September 26, 1893

From the Jay Circuit Court.

Judgment affirmed.

J. W Headington, J. F. La Follette and D. T. Taylor, for appellant.

A. G Smith, Attorney-General, and J. M. Smith, for appellee.

OPINION

Coffey, J.

This was an action by the appellee against the appellant, to compel the latter by mandamus to supply the residence of the relator with natural gas, to be used for lights and fuel.

It appears, from the complaint, that the appellant is a corporation, duly organized under the laws of this State, for the purpose, among others, of supplying to those within its reach natural gas, to be used for lights and fuel. By permission of the common council it has laid its pipes, for that purpose, in the streets and alleys of the city of Portland, in this State, and has pipes laid in Walnut street, of that city. The relator resides on Walnut street, on the line of one of the appellant's main pipes. His house is properly and safely plumbed for the purpose of obtaining natural gas.

In May, 1890, the relator demanded of the appellant gas service, and tendered to it the usual and proper charges for such service, but it refused, by its officers, to furnish the gas demanded, whereupon this suit was brought to compel it to furnish the gas desired by the relator.

The court overruled a demurrer to the complaint. It also sustained a demurrer to the second, third, and fourth paragraphs of the answer filed by the appellant. Over a motion for a new trial, the court awarded a peremptory writ against the appellant, requiring it to furnish the relator with gas, as prayed in the complaint.

These several rulings are assigned as error.

Very many of the objections urged against the complaint go to the question of its uncertainty, and are technical in character. It has been so often decided that a demurrer is not the remedy for uncertainty that we need not cite authority upon the subject.

The vital question in the case relates to the right of the relator to compel the appellant, by mandamus, to supply his dwelling house with natural gas for lights and fuel.

There are cases which hold that in the absence of a contract, express or implied, and where the charter of the company contains no provision upon the subject, a gas company is under no more obligation to continue to supply its customers than the vendor of other merchandise, among which is the case of Commonwealth v. Lowell Gas Light Co., 12 Allen, 75; but we think the better reason, as well as the weight of authority, is against this holding.

Mr. Beach, in his work on private corporations, volume 2, section 835, says: "Gas companies, being engaged in a business of a public character, are charged with the performance of public duties. Their use of the streets, whose fee is held by the municipal corporation in trust for the benefit of the public, has been likened to the exercise of the power of eminent domain. Accordingly, a gas company is bound to supply gas to premises with which its pipes are connected."

Mr. Cook, in his work on Stock and Stockholders, section 674 (2d ed.), says: "Gas companies, also, are somewhat public in their nature, and owe a duty to supply gas to all."

To the same effect are the following adjudicated cases: State v. Columbus Gas, etc., Co., 34 Ohio St. 572; New Orleans, etc., Co. v. Louisiana Light Co., 115 U.S. 650, 29 L.Ed. 516, 6 S.Ct. 252; People, ex rel., v. Manhattan, etc., Co., 45 Barb. 136; Gibbs v. Consolidated Gas Co., 130 U.S. 396, 32 L.Ed. 979, 9 S.Ct. 553; Williams v. Mutual Gas Co., 52 Mich. 499, 18 N.W. 236; In re Rochester Natural Gas, etc., Co. v. Richardson, 63 Barb. 437.

Our General Assembly, recognizing the fact that natural gas companies were, in a sense, public corporations, conferred upon them the right of eminent domain, by an act approved February 20, 1889, Acts 1889, p. 22.

It has often been held that mandamus is the proper proceeding by which to compel a gas company to furnish gas to those entitled to receive it. 8 Am. and Eng. Encyc. of Law, pages 1284-1289; People v. Manhattan Gas Light Co., supra; Williams v. Mutual Gas Co., supra; Rochester Natural Gas, etc., Co. v. Richardson, supra.

In view of these authorities, we are constrained to hold that a natural gas company, occupying the streets of a town or city with its mains, owes it as a duty to furnish those who own or occupy the houses abutting on such street, where such owners or occupiers make the necessary...