The Wichita Natural Gas Company v. Ralston

• Decision Date: 06 November 1909
• Docket Number: 16,027
• Citation: 81 Kan. 86,105 P. 430
• Parties: THE WICHITA NATURAL GAS COMPANY, Appellee, v. ROBERT RALSTON et al., Appellants
• Court: Kansas Supreme Court

105 P. 430

81 Kan. 86

THE WICHITA NATURAL GAS COMPANY, Appellee, v. ROBERT RALSTON et al., Appellants

No. 16,027

Supreme Court of Kansas

November 6, 1909

Decided July, 1909.

Appeal from Butler district court; GRANVILLE P. AIKMAN, judge.

STATEMENT.

THE gas company commenced this action in the district court of Butler county perpetually to enjoin the defendants from disturbing or interfering in any manner with the pipe line which the gas company had constructed upon the defendant's land. Upon the trial, which was to the court without a jury, the court made findings of fact and conclusions of law which read:

FINDINGS OF FACT.

"(1) That the plaintiff, at all times mentioned in its petition was and now is a corporation organized and existing under and by virtue of the laws of the state of Delaware, with its principal office in the city of Pittsburg, Pa., and its branch office in the city of Wichita, in the state of Kansas and that it is duly authorized to do business in said state.

"(2) That the said defendant Robert Ralston now is, and at all times mentioned in the petition was, the owner of the northeast quarter (1/4) of section thirty-three (33), in township twenty-seven (27) south, range four (4) east, in Butler county, Kansas, and that he and his wife, codefendant Mrs. Robert Ralston, at all times mentioned in plaintiff's petition, resided upon and now reside upon and occupy said land as their homestead.

"(3) That at the time of the filing of the petition in this case and for several months prior thereto, the plaintiff was engaged in the construction of a pipe line from its gas wells in Montgomery county, Kansas, through the counties of Chautauqua, Cowley, Butler, Sedgwick, Reno and Harvey, in said state, for the purpose of transporting natural gas through its main line and branch lines to the cities of Wichita, Hutchinson, Newton, El Dorado, and all intermediate towns, for the purpose of supplying the inhabitants in said cities with natural gas for heating and lighting purposes.

"(4) That in the construction of said lines it has one branch line commencing in the vicinity of Rose Hill, in said county of Butler, which extends in a northern direction near Augusta in said county, and thence in a northeasterly direction to the city of El Dorado, in said county of Butler.

"(5) That at the time of the commencement of this action plaintiff had constructed its said branch line from its main line in the vicinity of Rose Hill to the city of El Dorado, except a small portion thereof, which has since been completed, and plaintiff is now supplying natural gas through said line to the inhabitants of said city of El Dorado for heating and lighting purposes; that said line so constructed crosses the land of the said Robert Ralston for a distance of about ninety-seven (97) rods, which is buried beneath the surface of the ground to such a depth as to in no way interfere with said land for cultivating purposes.

"(6) That before the construction of said line across said land the said Robert Ralston verbally agreed and consented with plaintiff's duly authorized agent that plaintiff might lay, construct and maintain said line across said land, and thereafter, to wit, about the day of September, 1906, the said defendant Mrs. Robert Ralston verbally consented that plaintiff might construct said pipe line across said premises; and thereafter, and on or about the day of September, 1906, plaintiff peaceably entered upon said lands and constructed said pipe line without any objection on the part of the said Robert Ralston or Mrs. Robert Ralston, or any of the other defendants herein.

"(7) That after said pipe line was constructed said defendant Robert Ralston verbally agreed with plaintiff, through its duly authorized agent, that he, said defendant, would accept the sum of fifty ($ 50) dollars in full for the right of plaintiff to lay, keep and maintain said pipe line across his said land, and for all damages in the construction thereof. And at the request of said defendant, in compliance with said agreement on its part, plaintiff deposited said sum of fifty ($ 50) dollars in Brown's bank in the city of El Dorado for him, said defendant; that since the commencement of this action said Robert Ralston went to said bank and received said sum of fifty ($ 50) dollars so deposited, and gave his receipt for same, and he was then, ever since has been, and is now, satisfied with said consideration and is now making no objection to the construction of said pipe line over and across his said land.

"(8) That at the time of the commencement of this action, the said defendants C. M. Davis and Lee Ralston were, without any just cause or excuse, threatening to tear up and remove said pipe line from said land, and in pursuance of said threats had removed a part of the dirt covering said pipe line preparatory to removing the same as they had threatened to do, and that said defendant Mrs. Robert Ralston was directing and encouraging the said C. M. Davis and Lee Ralston in their acts in attempting to remove said pipe line from said...