Dissenting Opinion by
Wickham, J.The questions raised by the assignments of error', in tins case, relate to the rights and duties of a company organized to transport natural gas and engaged in removing its pipes, preparatory to abandoning its right of way over farming land. The act of May 29, 1885, P. L. 29, under which the appellant company *29obtained its right of way over the appellee’s farm, is silent as to the right of the company to dig np and remove its pipes, bnt it is rightly conceded, by the appellee, that the appellant had an implied right to do this. The appellee contends, however, in her printed and oral arguments that, in so doing, the company should have kept within the limits of its original appropriation, and should also have promptly and carefully filled the trench from which the pipes were taken.
As to the latter proposition, there can be no question. The exercise of tbe implied right to open the trench and remove the pipe, carries with it the implied duty to fill it in a careful manner and with reasonable diligence. A failure .to do either of these things would constitute actionable negligence, within the meaning of the second proviso in section 10 of the act. The proviso referred to reads as follows : “ That any company laying a pipe line, under the provisions hereof, shall be liable for all damage occasioned by reason of the negligence of such gas company.” But, even without this, the. landowner would have his remedy at common law. -
The proceedings under which the company obtained its rights show that “ The Philadelphia Company, under lawful authority, has surveyed a route and is about to lay down and construct a ten inch pipe line for the transportation of natural gas,” etc. Then follows a mere line description by courses and distances of the route selected.
The company had the right to take an easement of this Idnd. It was not bound, as the learned and able trial judge thought, to appropriate a ten or twelve foot strip, or a strip of any other designated width, as would be the case if it were taking land for a road, or railway. So much is indicated by the decisions in Penn Coal Co. v. Versailles Gas Co., 131 Pa. 523; and McGregor v. Gas Co., 139 Pa. 230. In the latter case it is said that one who exercises the right of eminent domain, under the act of 1885, “ must pay for what he takes, but he ought not to be compelled to take and pay for what he does not need.” But if this were not the law generally, it is the law of this case, as the landowner, knowing the character of the taking, made no objection thereto, and must therefore be held to have assented, so far as that matter is concerned.
I think, therefore, that it was erroneous to say to the jury, in *30the general charge, and in answer to the defendant’s second point, that the company, in removing the pipe, was a trespasser, if it went outside of the “ original appropriation ” in the sense wherein these words were used. The jury, no doubt acted upon the suggestion of the court and assumed that a twelve foot strip, perhaps less, must be deemed the right of way along which the company’s employees might haul the pipe, and off which they could not legally go, save at either end. This would compel them, in order to reach a highway, to go on adjoining lands, over which they would not have the shadow of right to haul pipes from other farms.
The rule applicable in this case is the one well recognized at common law, namely, that the dominant owner shall be permitted to enjoy his easement in such a manner as will secure to him every advantage contemplated by the grant: Pomfret v. Rucroft, 1 Wms. Saund. 321; Leyford’s Case, 11 Coke, 46 ; Goddard on Easements (2d ed.), 246; 6 Am. & Eng. Ency. of Law, 149, 152.
As incidental to such an easement as we are here considering, the party entitled thereto may in a proper manner and with due care-, go on the servient land and repair, renew, or in case of contemplated abandonment, remove the pipe. What constitutes due care must depend on the circumstances of each case. The conformation of the land, the character of the soil, its'use, the time of the year, the character of the weather, all may have to be considered. Sometimes less injury will be done to land by driving to a distant highway than to one near by. Again, it might be better for the landowner, that the hauling should not be done along the line of the trench. It may also happen that the hauling can easily be done over land which is fallow or barren, or from which a crop has recently been removed. I cannot of course assent to the appellant’s position, put in the form of a point in the court below, that a gas company has the right, in removing its pipe, to haul it “ from the place where it was laid, to the nearest and most convenient highway.” If this right existed in every case, it might happen, that where a pipe line ran parallel with a public road, the intervening land might be left with as many wagon tracks across it as there were loads of pipe. Growing crops might be destroyed with impunity and orchards, nurseries, pleasure grounds and lawns seriously injured, without chance for redress.
*31It must be presumed, that the landowner was fully compensated for the construction of the line and everything necessary to be done, in a reasonable manner towards its maintenance and repair and the ultimate removal of the pipe. The bond, it is true, only refers to damages for the laying down and construction of the line, but the obligee’s compensation was not assessed according to the letter of the bond but the spirit of the statute. The condition of the bond did not define the powers and duties of the viewers, the statute did this, and we must assume that the landowner received everything, in the way of compensation, to which he was entitled under the statute. The effect of the ruling announced by the majority of this court is, that the plaintiff was entitled to compensation in damages for any injury whatsoever done to his land by the removal of the pipe, although it was conceded by the court below and by the counsel here, and is admitted by this court, that the company had the right to remove the pipe. This ruling is based, not on the special facts of this case connected with the original appropriation, but upon a construction of the statute under which the company acquired the easement. It is put upon the ground that the statute does not contemplate an assessment of damages for the removal of the pipe at the time of the appropriation.
The court is about to sustain the verdict and judgment upon a ground not taken by the plaintiff in the court below and not argued here. As said before, it is conceded that the company had the right to remove the pipe and to retain possession for that purpose. If it had such right when did it acquire it and how, if it were not a part of the easement acquired at the first taking ?
If it were a part of the easement, like the admitted right to enter to renew or make repairs, the plaintiff was entitled to have the damages assessed for the whole servitude imposed on his land. How much that burden lessened the value of his land, taking into consideration all the rights which the company were entitled to exercise therein, and excluding negligence, was the question which the viewers had to decide: McGregor v Gas Co., supra. It is no answer to say that this was difficult of determination, because there was no certainty that the company would ever remove its pipe, or when it would remove it, or what injury would be caused thereby. The same might be *32said of the right to enter and take up pipe for repairs or renewal and of many other rights which may never be exercised. The fact that the rights exist and may be exercised, adds to the burden of the servitude and may lessen the value of the land. Damages caused or that might be caused by a negligent exercise of the right to remove, of course were not considered or allowed in the viewers’ assessment and such damages may be recovered here.
The consequences resulting from the doctrine contained in the majority opinion, it is respectfully suggested, would sometimes be very singular. For instance, if a pipe line were lifted, with a view to repairing defects, and replaced in the trench, without negligence, there could be no recovery; but if in consequence of a failure of gas before replacement, the pipes were hauled away, the trench refilled and the easement abandoned, the company could be held liable for every injury done, even although the greatest possible degree of care were exercised. In case of the necessary renewal of the line, it is not denied that, in addition to opening the trench and hauling away the old pipe, new pipe may be brought on the land, without liability on the part of the owner of the dominant estate, save for negligence; but it is held that if the kindred right to remove the pipe on abandonment, a right acquired at the same time, under the same statute and through the same proceedings, is exercised, no matter how carefully, the company may be treated and sued as a trespasser, if the least damage follows.
I cannot agree that the constitutional provision cited and relied on, in the majority opinion, has any application here. It is hardly possible that the lawmakers intended to confer on A a right in the lands of B which might be exercised any day, without also intending to provide just compensation. We should not assume that the right under discussion, which was a part of the servitude from the time of the original taking, was not to be paid for when compensation was made for 'the other branches of the same servitude, nor does the language of the statute require such a construction.
It is now a matter of common knowledge, whereof courts, juries and viewers may properly take notice that, sooner or later, natural gas wells become exhausted. Viewers have the right to assume that, at some time in the future, a natural gas *33pipe line may be taken up and removed, as fully as they may assume that the line will probably need repairing and perhaps renewing. There is perhaps as much certainty as to when the one event may occur as the other.
After all, in the assessment of damages for appropriations under the right of eminent domain by railroad and pipe line companies, there are and always will be elements of injury which in their nature, when abstractly looked at, cannot be otherwise than uncertain; but because of this they are not necessarily excluded from the consideration of the viewers in determining the main question, how much the taking and its essential incidents have lessened the value of the property affected.
I think that nothing in any of the authorities cited in behalf of the majority opinion conflicts with the views herein expressed.
The company had the right to remove the pipe, doing no unnecessary damage. Whether or not any unnecessary injury was done was a question for the jury. To leave it to them to determine the width of an appropriated strip that never was taken, or intended to be taken, and to instruct them that going outside of that imaginary appropriation wmuld be a trespass, was, we think, error. It may be, as the court told the jury, that driving fifty feet out from the line was unnecessary, but this was a matter for the jury, not for the court to decide. They might have viewed it differently, and, for aught we know, no more harm was done in this way than would have resulted from driving elsewhere. For the above reasons, I would reverse the judgment of the court below and award a new venire.
Rice, P. J., joins in this dissent.