162 Ind. 393 | Ind. | 1903
This action was instituted by the Consumers Gas Trust Company to enjoin the American Plate Glass Company and the Cleveland, Cincinnati, Chicago & St. Louis Railway Company from drilling a natural gas well on, and laying a gas-main along, that part of a railroad right of way which'extends through section six, township twenty-one, range eight, in Madison county, Indiana. The cause was put at issue, and after a trial the court rendered a finding and decree in favor of said gas company, restraining the defendants below from drilling such well, but the court denied the relief prayed relative to the laying of the gas-main. Each of the parties to the action filed a motion for a new trial, and has assigned error on appeal.
At the time of the institution of this action the gas company had a .written lease, of date October 26, 1896, which purported to grant to it for an indefinite time the exclusive right to drill gas-wells and lay pipes for the transportation of gas in a certain 400-acre tract of land in said section, which land, as described, covered said right of way. The lease was executed by the persons who had the record title to the entire tract. When this suit was instituted the gas company had a number of producing wells on said land, without the limits of said right of way. The railroad was built by the Cincinnati, Wabash & Michigan Railway Company about 1871. The right of way through the tract of land mentioned was fenced by said company about the year 1877, and it has since maintained said fences. Its entry upon the land was made without color of title, and over the protest of the holders- of the record title. The landowners have not sought to have their damages assessed. The company has occupied the land with a single track railroad and a line of telegraph poles since its entry. Its possession has been continued without inter
The lease of the gas company was sufficiently broad to vest in it the exclusive right, to sink gas-wells in said 400-acre tract; but, as said Cincinnati, Wabash & Michigan Railway Company was in the possession of and using said right of way for railroad purposes at the time of the execution of said lease, it is evident that the gas company was charged with notice of whatever rights said railway company had; and it is also clear that, -to the extent of a conflict between the terms of the gas company’s lease and the right of said railway company, it must be held that the rights of the latter are paramount.
Assuming, without deciding, that the glass company was invested with whatever of right the Cincinnati, Wabash & Michigan Railway Company had, we proceed to consider whether the latter company had a fee, or only an easement in said right of way.
It is true that said railway company might have acquired the fee by grant, and that a title by adverse possession is as good as the best title known to the law, yet, unless all distinction in the law of adverse possession between the acquirement of the fee in land and the acquire
In Manufacturers Gas, etc., Co. v. Indiana Nat. Gas, etc., Co., 155 Ind. 461, 50 L. R. A. 768, recognition was given to the doctrine, as natural gas can be obtained only by the drilling of wells, that the surface proprietors have such a qualified property in the gas in the limited reservoir below that they may enjoin an act which is in its nature destructive of their interests in the common property; but we are not prepared to affirm that because,of the right of a proprietor to draw gas from the common reservoir ho could enjoin a third person from obtaining gas therefrom, for the mere reason that the latter did not have a right to drill the necessary well. Eor such a violation of law it appears that the wrongdoer’s accountability is only to the proprietor who has a standing to complain of the trespass involved in the drilling of the well. It follows from this consideration that the plaintiff below can not enjoin the putting down of the well unless it further appears that-
As before stated, in effect, the gas company, by virtue of its lease, had every right in the whole tract of land in respect to the drilling of oil-wells, except to the extent that the existence of the railroad easement prevented the enjoyment of such right. The possession of the company which owned the easement was so far exclusive that the gas company was not authorized to enter upon the right of way for the purpose of drilling a gas-well, but, in case the easement should be abandoned while the gas company’s lease continues in force, such company would then have the right to drill gas-wells upon said strip of land. The gas company, as respects the right to drill for gas, stands in the position of an owner of the fee. The mere fact that such an owner may not enter and enjoy will not destroy his property rights in the servient tenement. State v. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224; Julien v. Woodsmall, 82 Ind. 568. In a case of this kind, where the gas company may draw off the gas in the common reservoir from a point without the right of way, it hardly seems to admit of debate that the proprietary interest of such company was about to be invaded by the drilling of the gas-well on the right of way. Under the evidence in the.case, it must be inferred that one of the purposes of a gas company in leasing a large tract of land for gas purposes is that the flow of gas in such wells as it sinks thereon may not be diminished by the sinking of wells by third persons within the area covered by the lease. Under the facts above disclosed, we do not doubt the right of the gas company to an injunction restraining the drilling of wells iipon that part of the right of way which extends across the tract leased by it. See Indianapolis Nat. Gas. Co. v. Kibbey, 135 Ind. 357; Westmoreland, etc., Gas Co. v. DeWitt, 130 Pa. St. 235, 18 Atl, 724, 5 L. R. A. 731.
The question remains as to the propriety of the action of the lower court in refusing to enjoin the construction of a pipe-line by the glass-company within the limits of said right of way. It appears that at the time this suit was commenced the glass company had about completed the laying of a line of eight-inch pipe along said right of way from its plant, which is some four miles south of the land in question, to the town of Summitville, which is situated about four miles north of said land. The line of pipe was at that time entirely connected, except at the point on said right of way where said glass company was boring said well. It further appears that said company had taken a number of gas leases about Summitville, and that it was. its purpose to use said line in the transportation of gas from such field' to its glass-works. The expenditure of said company on account of the putting in of said main at that time amounted to about $5,000.
We think that- the action of the trial court in refusing to enjoin the completion of said pipe-line was correct. The damage to the gas company, since it could not use the right of way for the purpose of transporting its own gas, and since it was not the holder of the fee, was not considerable, and, so far as appears, could have been fully compensated by damages. The absence of any right upon the part of said company, aside from a rather dry and technical one,
We find no error in the record. Judgment affirmed.