163 Ind. 563 | Ind. | 1904
This action was brought by the relator to compel appellee, by writ of mandamus, “to cease taking up and removing its pipe-line on the relator’s farm, and to replace any part of the line taken up at the commencement of this suit, and to continue to furnish natural gas to the relator’s farm dwelling according to the terms of a written contract granting appellee a right of way for its pipe-line across said farm.” The court sustained appellee’s motion to quash the alternative writ, and rendered judgment in favor of appellee. It is alleged in the alternative writ that appellee is a corporation organized in 1889 under the laws of this State providing for the organization of manufacturing and mining companies, and the acts amendatory thereof and the acts supplemental thereto, for the purpose, as expressed in its articles of incorporation, of “supplying, producing, and piping natural gas to the citizens of Connersville, Indiana, and to such other persons and parties as may be deemed proper by said company, and for the purpose of constructing natural gas lines from its wells to said city of Connersville, whereby said gas may be utilized for all purposes to which it may be adapted, and to lease, purchase, and acquire natural gas lands and territory and rights of way.” It' is further alleged that “soon after the organization of said company, it acquired gas lands and leases in Rush county, Indiana, and sank produc
It is evident that mandamus is not the proper remedy to compel appellee “to at once cease talcing up and removing the old pipe-liné on the real estate of relator, or show cause, if any,” etc., as commanded by the mandatory clause of the alternative writ. The remedy, if any, to prevent the taking up of said pipe-line was' injunction, and not mandamus. 19 Am. and Eng. Ency. Law (2d ed.), 721; High, Extra. Legal Rem. (3d ed.), §6; Merrill, Mandamus, §43. See, however, Loy v. Madison, etc., Gas Co. (1901), 156 Ind. 332.
It is a rule well settled in this State that the including in the mandatory clause of an alternative writ of a command for greater relief than relator is entitled to under the allegations of his petition and writ renders the same insufficient as against a demurrer for want of facts or a motion to quash. State, ex rel., v. Indianapolis Union R. Co. (1903), 160 Ind. 45-47, 60 L. R. A. 831, and authorities cited; Applegate v. State, ex rel. (1902), 158 Ind. 119, 123, 124, and authorities cited; State, ex rel., v. Commercial Ins. Co. (1902), 158 Ind. 680, 686, 687; Trant v. State, ex rel. (1895), 140 Ind. 414, 421, and cases cited. No question as to the authority of the trial court to grant leave to amend the alternative writ by striking out the part of the mandatory clause mentioned, or otherwise, is involved in this case.
It follows that the court did not err in sustaining appellee’s motion to quash the alternative writ of mandamus. Judgment affirmed.