The Windfall Manufacturing Company v. Patterson

• Decision Date: 12 May 1897
• Docket Number: 17,979
• Parties: The Windfall Manufacturing Company v. Patterson et al
• Court: Indiana Supreme Court

47 N.E. 2

148 Ind. 414

The Windfall Manufacturing Company v. Patterson et al

No. 17,979

Supreme Court of Indiana

May 12, 1897

Rehearing Denied October 6, 1897.

From the Howard Circuit Court.

Reversed.

J. C Blacklidge, C. C. Shirley, R. B. Beauchamp, W. W. Mount and W. O. Dean, for appellant.

M Bell, W. C. Purdum, Gifford & Nash and Gifford & Coleman, for appellees.

OPINION

Howard, J.

The appellees alleged in their complaint that the appellant was "threatening to and proceding to drill a gas well" within 152 feet of appellees' dwelling, and asked that the appellant be restrained from digging said well, and from digging any well, or laying pipes therefrom, "at any other point within 300 feet" of appellees' property.

The complaint was in two paragraphs, to the first of which, named second in the record, there was a special paragraph of answer; and to this answer a demurrer was sustained. The cause was submitted to the court for trial, and judgment rendered enjoining the company from drilling the well. The rulings on the pleadings, and the overruling of the motion for a new trial are assigned as errors.

It is doubtful whether the evidence is in the record. There is a certificate by a reporter that the evidence was taken down by him in shorthand and then transcribed into the longhand writing to which he certifies. The clerk also certifies "that the evidence set out in the bill of exceptions is the same that was taken by John Ingels, who is the official court reporter of the Howard Circuit Court." We might, perhaps, presume that the reporter was sworn; but there is nothing to show that his transcript of the evidence was filed with the clerk before it was incorporated in the bill of exceptions, or, indeed, that it was ever so filed and incorporated. The questions, however, which might be considered in passing upon the motion for a new trial are, in a great measure, those raised upon the pleadings. The main facts do not seem to be in dispute.

It appears that the appellant company was organized in 1891, for the purpose of buying land and machinery to engage in the manufacture of brick and drain tile. In pursuance of this object, the company, during the same year, purchased twenty-two acres of land near the town of Windfall. The land was believed to contain an unlimited supply of natural gas, such as was needed to operate the business in which appellant was to engage. During the same year, at a cost of $ 25,000.00, the company erected its plant and machinery, locating the same near the highway on the west line of said tract, and within 200 feet of the land afterwards purchased by appellees. In that year, also, the company drilled a gas well near the southeast corner of its land, and obtained a sufficient flow of gas to run its factory until the year 1895, when the gas failed in that well.

It is averred in the answer, that the twenty-two acre tract of land is not large enough to afford more than two sites for the location of a gas well, such as would probably furnish gas in sufficient quantity to operate the factory; that on the failure of the east well, it was necessary to suspend the operations of the factory until another well should be located and drilled; that three years after the location of the plant, the appellees, with full knowledge of all the facts, purchased the land on which they erected the dwelling house in question; that in 1895, on the failure of appellant's first well, and while appellant was prospecting for the location of a second well, the appellee, William E. Patterson, gave his consent that a well might be sunk on the west side of appellant's land, not to be nearer than 150 feet to appellees' said dwelling; and that appellant, relying upon this agreement, proceeded to drill the well here in question, and to lay the gas mains therefrom; that after the company had been engaged for four days in sinking the well, and when they were about to begin drilling the rock, the restraining order was issued; and that the point selected for drilling the second well was the furthest possible from the first well, and the best that could be selected.

The reasons given in the complaint to show why the injunction should be issued were: That if the proposed well should be completed, there would be a continuous loud noise, depriving appellees of the enjoyment of their property and greatly depreciating its value; that natural gas is a very explosive and inflammable substance, and when confined under the surface of the earth, permeates the soil for hundreds of feet; and, as soon as freed in the air, produces a stench, tarnishes paint, furniture and silverware, and renders the atmosphere unfit to breathe for many feet around the place of such escape; that the pipe line, if constructed to carry gas at rock pressure, as intended, would endanger the lives and property of appellees and their families; that gas wells attract the electric fluid and are exceedingly liable to be struck by lightning; that in the digging of said well there is danger of bringing from the earth other substances, such as water and oil; and that, if the well should overflow with either oil or water, great damage would result, rendering appellees' property unfit for the purposes for which they hold the same.

The dangers thus apprehended by appellees were such as might arise in case the well should be sunk, and gas, oil or water be found. It is not said that any evil result could come merely from the drilling of the well. But the well might be sunk into the trenton rock, and yet no gas, oil or water be brought to the surface. It is not clear, therefore, that the danger apprehended is so imminent as to warrant the issue of a restraining order. In addition, it may be questioned whether an injunction should in any event issue, unless it be true that a gas, oil, or water well is a nuisance per se, or unless it should be made to appear that the well and pipes of appellant were to be improperly put down and afterwards carelessly attended to.

In Dalton v. Cleveland, etc., R. W. Co., 144 Ind. 121, 43 N.E. 130, the appellant sought to enjoin the erection on appellee's right of way of a coal chute, to be used for supplying its engines with coal, and to be situated very near to a building owned and used by appellant as a dwelling and business house. It was alleged that from the height and character of the structure it would greatly interfere with appellant's access, view, light and air, would cause unusual, loud and offensive noises, disturb sleep, cause coal dust, fumes of sulphur and other noisome gases to be blown into appellant's building, injuring furniture, stock in trade, and in other ways greatly impairing the value of appellant's property and causing annoyance, discomfort and danger to appellant and to the occupants of his building. The court, in that case, while not denying that unlawful uses of the structure might be restrained, yet held that, as the erection of the building would of itself not constitute a nuisance, a writ could not issue, for the reason that the threatened evils might never result. The case of Keiser v. Lovett, 85 Ind. 240, and other authorities were there cited, and the court concluded that: "Each of these cases recognizes the rule that equity will not restrain that which is not a nuisance upon the claim that it may be so used as to constitute a nuisance."

A business which is a nuisance per se, as also one that is so conducted as to have become an actual nuisance will be enjoined. But a business which merely threatens to become a nuisance will be enjoined only where the court is satisfied that the threatened nuisance is inevitable; and, since the remedy is so severe, resulting often in wholly depriving an owner of the use of his property, the court will proceed with the utmost caution in restraining such threatened and possible...