Halstead v. American Natural Gas Co. , 17 Pa. Super. 605 ( 1901 )

Opinion by

William W. Porter, J.,

The agreement between the plaintiff and the Natural Gas Company, Limited, conferred on the latter the right to lay and maintain two lines of pipe across the plaintiff’s farm, to be used in conducting natural gas to places of consumption. No expressed limit of time was set to the exercise of the right. No obligation was incurred to continue its exercise. Upon abandonment, as an incident to their right, the company had the power, within a reasonable time, to enter upon the plaintiff’s farm and remove the pipes. In doing this they were liable for the damages suffered by the plaintiff. There is in the testimony no denial of the liability to pay such damages. Indeed, the readiness to pay them was shown by the defendants’ witnesses. The rights and obligations thus created were substantially the same as those now incident to the acquisition of rights by pipe lines under the act of 1885, in the exercise of the right of eminent domain: Clements v. Phila. Co., 184 Pa. 28.

The defendants having the right, on abandonment, to remove the pipe on payment of damages, was that right lost by delay in its exercise ? It is not denied that the use of the pipe, for the purpose for which it was put in place, was discontinued ten years before the removal which is the cause of this litigation. The pipe, on properties contiguous to that of the plaintiff and on part of the plaintiff’s land, was at that time actually removed. The defendants say that the abandonment of the pipe in dispute was temporary; that they did not remove it when the balance of the pipe was removed because the ground above it was then covered by growing grain; that the temporary abandonment was to save loss to the plaintiff and that through oversight they did not .return for ten years to complete the removal. It is to be observed that the defendants did not allow the pipe to remain at the request of the plaintiff and that their course was not in his relief. The trial judge would probably have, been justified in instructing the jury as matter of law that the facts shown, constituted an abandonment of the use of the pipe line: Aye v. Philadelphia Co., 198 Pa. 456. But the question does not arise, inasmuch as he submitted the question of abandonment to the jury as a question of fact. This left in the case but one other question which is also one of fact, namely did the defendants (or their predecessors in right) lose their right of entry to remove the pipes by failure to exercise it within a reasonable time after the abandonment of the use of the pipe line ? This, the court below submitted to the jury who found in favor of the plaintiff. If the right to enter and remove was gone, the right to the chattels was lost, since the defendants were without power or right to take them from the plaintiff and reduce them to possession.

The defendants contend that the agreement with the plaintiff, followed by entry and the laying of the pipe, was in effect the grant of an easement for an unlimited time. But an easement may be abandoned. Here the allegation of abandonment is not based upon nonuser. The act of tbe defendants in destroying tbe line of pipe by removal of a part of it, was evidence upon which the jury could and doubtless did find that the defendants had abandoned their rights acquired by or incident to the contract. Their act was unequivocal and decisive, if the evidence of it was believed, and it was confirmed in its effect by the running of ten years without attempt to exercise any rights in the premises. Again, it is contended that by analogy with the provisions of the act of June 10, 1893, sufficient time had hot elapsed before the attempted re-entry, upon which to predicate an abandonment. But the answer is again that the abandonment is not based upon nonuser, but upon a definite act showing an actual abandonment.

We find no reversible error in the record and therefore the judgment is affirmed.