#### Fred Stone *v.*United Fuel Gas Company

(No. 7086)

Submitted February 16, 1932.

Decided February 23, 1932.

*570
      *Harold A. Ritz*and *B. J. Pettigrew,*for plaintiff in error.

*Thomas P. Rycm*and *S. P. Bell,*for defendant in error.

HATCHER, PRESIDENT :

In 1927, tbe plaintiff, Fred Stone, purchased and moved on a tract of 120 acres, and thereupon, by virtue of a covenant in a gas lease made by a predecessor in title, became entitled to use free gas for domestic purposes from a well of tbe defendant, United Fuel Gas Company, be to make bis own connections. In December, 1927, be laid a pipe line about 1300 feet in length from bis bouse to and connecting with tbe well. He installed a regulator on tbe line near bis bouse. Shortly afterwards, the company disconnected tbe line, and then Stone reconnected it. A representative of tbe company said Stone stated be bad purchased tbe property, but that be did not produce bis deed. On January 18, 1928, tbe company brought a suit in chancery against Stone for using tbe gas and secured an order from tbe circuit court restraining him from maintaining tbe connection. He filed an answer in tbe nature of a cross-bill, exhibiting bis deed and praying that tbe company be required to furnish him gas, etc. Tbe restraining order was dissolved on May 23, 1928, and tbe company was directed by tbe court to “reconnect said pipe and permit the defendant (Stone) to use free gas until tbe further order of tbe court. ’ ’ Tbe company proposed to Stone it would do so if be would furnish a regulator for installation on tbe line at tbe well. He countered that be would furnish tbe regulator if tbe company would build a footbridge across a creek which flowed between bis bouse and tbe well so be could “get to it (tbe regulator) if anything happened.” Tbe company rejected this offer and never did reconnect tbe line. Stone used wood as fuel (with notice to tbe company) until March 17, 1930, when bis dwelling was destroyed by fire. He sought *571in this action to recover- as damages for the breach of the covenant to fnrnish him gas, the value of his house, and the expense of using wood for fuel. The court struck out his claim for the house, and affirmed a verdict of the jury of $800.00 (about $1.00 a day) for the fuel.

Plaintiff was permitted to amend his declaration at bar by inserting the words “malicious and without probable cause” in describing the motive of defendant in securing the injunction. The defendant contends that this amendment changed the original form of action by ingrafting thereon an allegation of “malicious prosecution or abuse of civil process.” As the plaintiff did not change his demands (damages for breach of the lease covenant) and made no attempt to recover for malicious prosecution, the amendment will be treated as exuberance of description, rather than as a change in pleading. It naturally follows that we hold there was no misjoinder of causes, and that defendant’s motion -to require plaintiff to elect, etc., and its plea limiting plaintiff’s right of action to a period of one year were inapt.

The defendant contends that plaintiff should have sued on the injunction bond. But the bond was merely for the plaintiff’s protection and related only to a brief period when the line was disconnected; he could waive that protection if he saw fit, and rely solely on his claim for damages from a breach of the lease covenant, as he has done.

The defendant would justify its course by a rule promulgated in one of its tariffs and approved by the public service commission, which rule requires a consumer to furnish a regulator for installation at the tap on the defendant’s main. This rule applies primarily to parties seeking connections for commercial gas from the utility. The defendant relies on *Gas Co.*v. Richardson, 84 W. Va. 413, 100 S. E. 220, in which a lessor entitled to free gas was enjoined from interfering with a meter placed on his line by the lessee under an order of the commission. But there, the installation of the meter involved no expense nor inconvenience to the lessor. The lessee had the right to measure, at its own expense, the gas furnished the lessor as a reasonable incident of the service, *572irrespective of the order of the commission. In *the*instant case there is no evidence of the amount of pressure of gas at the well, or of the actual or probable effect of, that pressure (to cause leakage) on the line as constructed by Stone. Consequently there is nothing to show that the installation of the regulator at the well was a reasonable requirement. In the absence of such proof, the defendant’s demand that the plaintiff furnish it with a regulator, at his cost, to be installed at a place convenient to it, but inconvenient to him, appears to have been arbitrary. If so, this demand is not warranted by the lease covenant and makes this case materially different from *Gas Co.*v. *Richardson.*Moreover, the defendant through its agents, knew there was no regulator on plaintiff’s line near the well when it brought the injunction suit. Yet it did not raise the question of the regulator and permitted the order directing it to “reconnect said pipe” (plaintiff’s pipe line) 'to become final. *Res adjudieata.*Therefore, the requirement of defendant as to regulators on lines of commercial consumers furnishes no defense.

The defendant invokes *the*equitable rule requiring a plaintiff to minimize damages, and contends that instead of using wood, the plaintiff should have purchased gas from it, as a cheaper fuel. We are not in accord on this contention. However, we have composed our differences in theory by a practical application of the rule which we believe metes out concrete justice, as follows: the plaintiff could have had the circuit court (upon a rule in the injunction suit) compel defendant to obey the order directing it to supply him with free gas. This proceeding would have been at little if any cost to him. ITis use of wood for fuel, in disregard of this simple and effective means of obtaining gas was just as arbitrary as defendant’s refusal to furnish him gas. Consequently we hold that his expense for wood is not the proper measure of his damages; but that he is entitled to recover the value of so much gas as would have been reasonably necessary for his domestic purposes, during the period the defendant kept the pipe line disconnected.

*573Accordingly we reverse tlie judgment but we limit another trial to the single issue of the *quantum*of damages. See *Chafin*v. *Ry. Co.,*80 W. Va. 703, 712, 93 S. E. 822.

*Reversed.*