Wheeler v. Inland Gas Corporation
| Decision Date | 14 May 1948 |
| Parties | Wheeler v. Inland Gas Corporation. |
| Court | United States State Supreme Court — District of Kentucky |
1. Bankruptcy. — Action against bankrupt gas corporation to require corporation to furnish plaintiff with gas and to require corporation to bury gas line across plaintiff's land below plow depth, in conformity with covenant running with the land, involved the "use, control, maintenance and operation of the corporation's property" within order of the bankruptcy court prohibiting such actions without the court's permission. Bankr. Act, sec. 77B, 11 U.S.C.A. sec. 207.
2. Bankruptcy. — Appointing court has exclusive jurisdiction over management of bankrupt's estate and may protect such jurisdiction by injunction.
3. Bankruptcy. — Actions for damages arising in operation of bankrupt concern, permitted by statute without authority of bankruptcy court, do not include actions against trustee which involve use, management or administration of property in trustee's hands. Jud. Code, sec. 66, 28 U.S.C.A. sec. 125.
4. Bankruptcy. — Actions for damages arising in operation of bankrupt concern, permitted by statute without authority of the bankruptcy court, only determine whether plaintiffs therein have claims against bankrupt's estate and if it is adjudged that they have, then their judgments are provable against the bankrupt. Jud. Code, sec. 66, 28 U.S.C.A. sec. 125.
Appeal from Lawrence Circuit Court.
C.F. See, Jr., and M.J. See for appellant.
Porter Gray and Eldred E. Adams for appellee.
Before Watt M. Prichard, Judge.
Affirming.
C.B. Berry owned a tract of land in Lawrence County and on June 30, 1928, he entered into a contract with appellee, Inland Gas Corporation, wherein it was given the right to lay its gas line across Berry's land. The contract gave Berry the right to tap the line at his expense and the Company agreed to furnish him gas from its line at a given rate. It was further provided in the contract that the Company would bury its line below plow depth. The contract recites that it is a covenant running with the land and is to remain in force as long as the line is maintained. Soon after this contract was made the Company constructed its line over the land of Berry.
Berry subsequently sold a part of the land over which the line ran to appellant, Jake Wheeler. On Oct. 26, 1935, the Company was adjudged a bankrupt in the United States District Court for the Eastern District of Kentucky, and it was in the process of re-organization under sec. 77B of the National Bankruptcy Act, 11 U.S.C.A. sec. 207, when the action now before us was instituted in 1947. Upon the Company being adjudged a bankrupt in 1935, an order was entered by the bankruptcy court naming Ben Williamson Jr., trustee for the bankrupt Company, and granting the trustee an injunction restraining creditors and all other persons having any claim, right, title or interest in or to any property of the bankrupt from instituting or prosecuting any action at law or proceeding in equity against the bankrupt, its receiver or trustee to take possession of, remove or dispose of, or in any manner disturb any portion of its assets, without first having obtained permission from the judge of the United States District Court for the Eastern District of Kentucky to institute such action.
On Feb. 3, 1947, appellant filed this action in equity in the Lawrence Circuit Court against the Company wherein he asked the court to require the Company to furnish him gas as it does other customers along its line, and to require the Company to bury its line below plow depth where same runs over his land. The trustee of the bankrupt Company filed a special plea questioning the jurisdiction of the Lawrence Circuit Court, wherein he set out and filed as an exhibit with his pleading the restraining order referred to in the above paragraph, and averred that neither appellant nor any one for him had obtained leave of the bankruptcy court to maintain or prosecute this action. The trustee asked that his special plea in abatement be sustained and that appellant's petition be dismissed. The relief asked was granted the trustee and this appeal followed.
Appellant does not ask for damage suffered by reason of the Company's failure to bury its line, but he is seeking to have the court require the Company to bury its line. To do this would not only cost the Company out of all proportion to any inconvenience or damage appellant may suffer because of the line remaining on top of the ground, but it would stop, at least temporarily, a large flow of gas to many industrial concerns in the territory served by the Company. Also, appellant is asking that the character of the bankrupt Company's business be changed, in that domestic users of gas be added to its customers when theretofore its sole business was supplying commercial users with gas, with the exception that it supplied the homes of landowners giving it permission to lay its line over their lands.
It is thus seen that this action...
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