Great Western Nat. Gas and Oil Co. v. Hawkins. of the land fails to select such way when requested, the party who has the right thereto, may select a suitable route for the same, having due regard to the convenience of the owner of the servient estate." It was not for the court to select the proper route for appellant under the averments of the complaint, nor could the court render an effective judgment quieting the title to any part of appellees' land, or grant to appellant an easement across appellees' land, nor quiet title to such easement, unless a particular description of the route over which the easement was granted was shown by the complaint, and in this complaint there is no allegation that an easement had been marked out, located, or existed over and across appellees' land prior to the time this action was commenced. Neither paragraph of the complaint was sufficient, and the trial court properly so held. Judgment affirmed. THE GREAT WESTERN NATURAL GAS AND OIL COMPANY U. HAWKINS ET AL. [No. 4,045. Filed March 11, 1903.] EMINENT DOMAIN. -Condemnation Proceeding. -Practice. - A condemnation proceeding is special in its nature, and while not in the strict sense an ordinary civil action, yet the provisions of the civil code as to matters of practice may be called to the aid of the special statute. p. 559. SAME.-Condemnation for Pipe-Line Purposes.-Refusal of Court to Appoint Appraisers.-Where the instrument of appropriation to condemn land for pipe-line purposes, under §§5103-5105 Burns 1901, shows on its face that the petitioner has no right to maintain the proceeding, it is not error for the court to refuse to appoint appraisers to estimate the amount of compensation to be made. pp. 561-564. SAME.-Condemnation for Pipe-Line Purposes Natural Gas.- Public Use. -Under §§5103-5105 Burns 1901, the power of eminent domain can not be exercised by a gas company to establish a pipeline unless the petition shows that the company is engaged in furnishing gas for public use. An allegation that the real estate Great Western Nat. Gas and Oil Co. v. Hawkins. sought to be condemned is necessary in the construction of its pipe-line from its wells to a certain city is not sufficient. pp. 565-577. EMINENT DOMAIN.-Natural Gas Pipe-Line.-Complaint.—An instrument of appropriation asking the fee in certain lands for pipe-line purposes is fatally defective, where the statute authorizing the condemnation gives the right to acquire only an easement. p. 577. From Delaware Circuit Court; J. G. Leffler, Judge. Condemnation proceedings by the Great Western Natural Gas & Oil Company against Lewis M. Hawkins and others. From a judgment for defendants, plaintiff appeals. Affirmed. Forkner & Forkner, for appellant. Rollin Warner and A. W. Brady, for appellees. ROBINSON, J.-This cause was transferred from the Supreme Court under the provisions of the act of March 12, 1901 (Acts 1901, p. 565). Appellant filed in the office of the clerk of the Delaware Circuit Court its instrument of appropriation, averring that it is a corporation organized under the laws of Indiana for the purpose of drilling and mining for petroleum and natural gas, and otherwise acquiring gas and petroleum wells and the product thereof, and to furnish the same to its patrons for use within this State, and by manufacture to convert the same into gas for fuel and illuminating purposes, and other articles of commerce, and digging trenches and laying pipes for the purpose of conducting gas to its patrons within this State; that it gives notice of its desire and intention "to enter upon, use, hold, and appropriate the fee simple interest, subject to the rights of the public therein as a public highway, as and for a right of way for its pipe-line, of the following described lands:" A strip one rod wide off the west side of a certain quarter section "being so much of said tract not exceeding one rod in width as lies within the public highway now located thereon and abutting on the center line of said highway; that said real estate is necessary for the use of said company for its Great Western Nat. Gas and Oil Co. v. Hawkins. pipe-line and connections therewith in the construction of the same from the city of Muncie north to the gas wells and territory owned by said company in the northern part of said county of Delaware;" that Lewis M. Hawkins owns the fee of the land subject to the rights of the public in the highway; that the lands are occupied by Jacob Hawkins, who claims some interest therein, and the Manufacturers Gas & Oil Company claims some interest therein, but in fact have no right, title, or interest in the land; that appellant has not agreed with the parties and is and has been unable to agree with them for the purchase of the land, or touching the damages sustained by reason of the use and appropriation of the same. Notice having been given, and the instrument of appropriation submitted to the circuit court at a regular term, for the appointment of appraisers, appellees excepted to the instrument of appropriation, and denied the power of the court to take any further action, for the reasons, among others, that the instrument of appropriation does not show that the appropriation is desired for the purposes for which the right of eminent domain may be invoked under the statute, and that it is sought to condemn the fee simple of the real estate, and not a mere easement. upon For the purposes of this opinion it is unnecessary to set out all the objections made to the application. Some of these objections tender issues of law, while others tender issues of fact. The manner of raising objections apparent the face of the instrument of appropriation is not uniform in all jurisdictions. The same result may be reached by different methods. Lewis, Eminent Domain (2d ed.), §389. The proceeding is in its nature a special statutory one, and while it is not, in the strict sense, an ordinary civil action, yet the provisions of the civil code as to matters of practice may be called to the aid of such statute. Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578. Great Western Nat. Gas and Oil Co. v. Hawkins. Upon the hearing the court refused to appoint the ap praisers, and from that action of the court this appeal is prosecuted. The statute ($5103 Burns 1901) upon which the proceeding is based provides: "That whenever any company, corporation or voluntary association incorporated under the laws of the State of Indiana, or which may hereafter be incorporated thereunder, for the purpose of drilling and mining for petroleum or natural gas, or otherwise acquiring gas or petroleum wells and the products thereof, and to furnish the same to its patrons for use within this State, and by manufacture to convert the same into gas for fuel and illuminating purposes, and other articles of commerce, shall desire to dig trenches and lay pipes for the purpose of conducting gas to its patrons within this State, or conducting gas from its wells, or wells leased by it, or from its manufactory to any point within this State, such company, shall possess" certain powers, among them the power of eminent domain. * * X By $5104, supra, such company, if unable to purchase real estate required for the construction of its trenches and laying of mains and connecting pipes, is given the right to acquire an easement for such purpose in and upon such land, Section 5105, supra, provides that such a proceeding shall be instituted by depositing, "with the clerk of the circuit or other court of record in the county where the line lies, a description of the rights and interests intended to be appropriated, and an easement in such land, rights and interest shall belong" to such company "for the purpose specified" upon payment or tender of payment as provided. Provision is also made that if the company and the landowner can not agree touching the damages, the company shall deliver to the owner, within the county, “a copy of such instrument of appropriation," or if the owner does not reside in the county the company shall publish in a newspaper "an advertisement reciting the substance of such Great Western Nat. Gas and Oil Co. v. Hawkins. instrument of appropriation." Upon filing "such act of appropriation" and delivering a copy or making publication the court or judge thereof in vacation shall appoint appraisers to appraise the damages sustained by such appropriation, who shall report to the court, and either party may appeal therefrom as is provided in respect to railroads. Section 5105, supra, follows closely the language used in $5160, supra, concerning proceedings to appropriate land for railroads, and proceedings in both cases are governed by the same rules. Consumers Gas Trust Co. v. Huntsinger, 12 Ind. App. 285. The statute concerning proceedings to appropriate land for railroads,--§§5159, 5160, 5164 Burns 1901, the same being $814, 15, 17 of an act approved May 11, 1852; and §396 of the code (§399 Burns 1901), the same being $99 of an act approved June 18, 1852; and §896 of the code of procedure, touching the writ of assessment of damages ($908 Burns 1901), the same being $697 of an act approved June 18, 1852, are to be construed in pari materia. Swinney v. Ft. Wayne, etc., R. Co., 59 Ind. 205; McMahon v. Cincinnati, etc., R. Co., 5 Ind. 413. It is first argued by appellant's counsel that the court had no jurisdiction at the stage of the proceedings involved to entertain any exceptions; that the court had no jurisdiction. to act judicially, but only ministerially, and to determine in a ministerial way, upon the face of the instrument of appropriation, whether appellant was a de facto corporation, and whether the proceedings were regular upon their face. The question raised is one of practice, and seems never to have been expressly settled in this State. The propriety of the exercise of the right, of eminent domain is a question exclusively legislative, but the proceedings in the exercise of the right may be before such body or tribunal as the legislature may designate. Whether such a proceeding is, strictly speaking, a civil action, or a special VOL. 30-36. |