The Xenia Real Estate Co. v. Macy

Decision Date12 May 1897
Docket Number17,987
Citation47 N.E. 147,147 Ind. 568
PartiesThe Xenia Real Estate Co. et al. v. Macy
CourtIndiana Supreme Court

From the Miami Circuit Court.

Affirmed.

Roscoe Kimple, for appellants.

S. L Stricler and Nott N. Antrim, for appellee.

OPINION

Monks, J.

This appeal was taken from a judgment and decree granting appellee a perpetual injunction against appellants with damages. Each appellant assigned as error:

1. The amended complaint does not state facts sufficient to constitute a cause of action.

2. The court erred in overruling appellants' motion for a new trial.

3. The court erred in overruling appellants' motion to modify the judgment and decree.

The amended complaint, so far as necessary to the determination of the questions presented, is substantially as follows "During the year 1892, the Xenia Real Estate Company was a corporation organized under the laws of the State for the purpose of purchasing and platting lands into lots and drilling wells for natural gas in order to supply gas to consumers, and for the general improvement of the town of Converse; and that the company had caused to be drilled on property controlled by it a well which produced a large supply of natural gas and which from said date until the present time continues to supply a large quantity of natural gas which said company has been furnishing to consumers. That the supply of natural gas from said well was and is of uncertain quantity and duration in time. That in October, 1892, appellee contemplated the construction and operation of an electric light plant, in said town of Converse, for the purpose of furnishing lights to said town and to private consumers. That said appellant, the Xenia Real Estate Company, had platted a large tract of land into lots adjoining said town and was desirous that said electric light plant should be located at or near said gas well, owned by said real estate company, believing that such location would enhance the value of their said lots, and that in consideration of such location of said electric light plant and power house upon a site to be selected by said Xenia Real Estate Company, said company agreed to convey to appellee certain lands, upon which the necessary buildings, fixtures and appurtenances thereto belonging could be erected, and would furnish to him for the purpose of operating said plant a supply of natural gas sufficient for said purpose, free of charge, so long as said gas well would supply the same, provided that said real estate company should not be prohibited from using natural gas from said well for other purposes, but should continue to furnish appellee with sufficient gas for the purpose of operating said electric light plant so long as said gas well should supply gas. That pursuant to said agreement the Xenia Real Estate Company conveyed certain real estate [describing it] to appellee, and selected it as the site upon which said electric light plant should be located, and appellee accepted the same and erected said plant thereon, and connected the same with the main pipe line from said natural gas well at the place designated by said Xenia Real Estate Company, and has continuously operated said electric light plant from that date until the commencement of this action, and in all things complied with his agreement with said company.

That in March, 1895, the Xenia Real Estate Company sold and conveyed the real estate upon which said natural gas well is located to appellant, Alexander W. Fink. That appellees, William Baldwin and Edward W. Tucker joined with said Fink in the purchase of said real estate, but the deed therefor was made to said Fink. That said persons named had actual notice and well knew of said agreement between appellee and the Xenia Real Estate Company, and of all appellee's rights therein. That said natural gas well has continuously, from the time of the agreement to the present time, furnished and still furnishes an abundant supply of natural gas for the operation of said electric light plant. That appellants are threatening, and if not restrained from so doing will withhold the supply of said gas from appellee, and are threatening to disconnect said plant from said natural gas well. That appellee is under contract for the furnishing of electric light to said town of Converse and to numerous private consumers, all made on the faith of said agreement with the Xenia Real Estate Company, and that he will be unable to comply with the terms of his contracts and furnish electric light to said town and the private consumers, and render himself liable for damages to said consumers if he is prevented from obtaining a supply of gas from said gas well through said gas main and pipes for the purpose of operating said electric light plant, and there is no other gas well accessible to said plant and he has no other means of obtaining fuel for the operation of said plant without great delay and expense. That appellants have at different times disconnected said plant from said gas well and appellee has been put to great expense. Prayer for injunction and damages."

There was no demurrer to the complaint in the court below, and it is well settled that when the sufficiency of a complaint is tested for the first time by an assignment of error in this court, it will be held sufficient if it contain facts enough to bar another action. Citizens', etc., R. R. Co. v. Willoeby, 134 Ind. 563, 565, 33 N.E. 627, and cases cited; Loeb v. Tinkler, 124 Ind. 331, 333, 24 N.E. 235, and cases cited.

It is not insisted by appellants that the complaint does not state facts sufficient to constitute a cause of action for damages, but that it does not state facts sufficient to entitle appellee to an injunction.

If the complaint states facts sufficient to entitle appellee to damages, a part of the relief prayed for, it is sufficient to withstand the first error assigned or even a demurrer for want of facts. Culbertson v. Munson, 104 Ind. 451, 4 N.E. 57; Bloomfield, R. R. Co. v. Van Slike, 107 Ind. 480, 8 N.E. 269; Owen School Township v. Hay, 107 Ind. 351, 8 N.E. 220; Locke v. Catlett, 96 Ind. 291; Loeb v. Tinkler, supra.

We think the complaint not only states facts sufficient to entitle appellee to damages, but also to an injunction.

It is not necessary in an application for an injunction, as insisted by appellant, to aver and prove that the plaintiff will suffer irreparable injury if the relief by injunction is not granted. All that is necessary is to aver that the plaintiff will suffer great injury. Section 1162, Burns' R. S. 1894 (1148, R. S. 1881).

If from the facts alleged in the complaint, it is apparent that appellee had no other complete or adequate remedy, the same was sufficient to entitle him to an injunction. Denny v. Denny, 113 Ind. 22, 14 N.E. 593; Champ v. Kendrick, Tr., 130 Ind. 549, 553, 30 N.E. 787; Bishop v. Moorman, 98 Ind. 1; Erwin v. Fulk, 94 Ind. 235; Allen v. Winstandly, 135 Ind. 105, 109, 34 N.E. 699.

It was said by this court in Champ v. Kendrick, Trustee, supra, quoting from 3 Pom. Eq. Jur. section 1357: "That a remedy which prevents a threatened wrong is in its essential nature better than a remedy which permits the wrong to be done, and then attempts to pay for it by pecuniary damages which a jury may assess." Denny v. Denny, supra, was an action brought by a widow to enjoin the executor from selling corn which she claimed the right to take as such widow at its appraised value, an injunction was granted by the trial court. This court in affirming the judgment said: "If it be conceded that the plaintiff might have maintained a suit on the bond, it does not necessarily follow that she must have permitted the corn, to which she had a clear legal right, to be sold. She was not bound to take the chance of obtaining other corn or leaving her animals to suffer for want of feed. * * * 'It is not enough that she had a remedy at law; it must be plain and adequate, or in other words, as practical and efficient to the ends of justice, and its prompt administration, as the remedy in equity.'"

The complaint alleges that, relying upon the agreement of the Xenia Real Estate Company to furnish natural gas from their well and permit appellee to connect the gas main from said well with his light plant, he erected the same at large expense and entered into a number of contracts to furnish electric light to the city and private consumers, and that to disconnect the light plant from said natural gas main will cause a breach, on his part, of the contracts to furnish light to said consumers for which he would be liable in damages, and that there is no other gas well accessible to said plant and he has no other means of obtaining fuel for the operation of said plant without great delay and expense.

Moreover, it is alleged in the complaint that the supply of natural gas from said well is of uncertain quantity, and the time it will furnish a supply of gas is not known. Taking these averments with the other facts alleged as to the effect of disconnecting appellee's plant from the gas well and it would be impossible to estimate his damages.

The allegations show that, if appellants were permitted to carry out their threats, appellee would suffer great injury; and it is apparent from the facts alleged that there is no complete or adequate remedy except...

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