Xenia Real-Estate Co. v. Macy

• Citation: 47 N.E. 147, 147 Ind. 568
• Case Date: May 12, 1897
• Court: Supreme Court of Indiana

147 Ind. 568
47 N.E. 147

XENIA REAL-ESTATE CO. et al.
v.
MACY.

Supreme Court of Indiana.

May 12, 1897.

Appeal from circuit court, Miami county; J. G. Cox, Judge.

Suit by Frank Macy against the Xenia Real-Estate Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Roscoe Kimple, for appellants. S. L. Strider and N. N. Antrim, for appellee.

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. 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

[47 N.E. 148]

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 a 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 appellants 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 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. Railroad 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 appellees 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....