*166On Petition fob Reheabing.
Ross, J.The appellant very earnestly insists that a rehearing be granted and the court pass upon the sufficiency of the third paragraph of the answer to-which a demurrer was overruled, and the second paragraph of the reply, to which a demurrer was sustained.
The sufficiency of these pleadings was not determined in our original opinion, although considered in arriving at the conclusion reached, for the reason that, as we understood the argument of appellant’s counsel, it was addressed exclusively to the sufficiency of the evidence to sustain the verdict, applicability of the instructions thereto, and that the facts found by the jury in answer to the interrogatories were irreconcilable with the general verdict. And we are still of the opinion that the-drift of all the argument adduced by the appellant in its original brief was so addressed, although there was inserted therein the following which we quote as all of the argument directed, or in any manner referring to-those pleadings, viz: “If our construction of the act of 1889 is correct, the court below erred in overruling appellant’s demurrer to the third paragraph of appellee’s answer, and in sustaining appellee’s demurrer to* the second paragraph of appellant’s reply, and in refusing to give the instructions requested by the appellant to the jury, and giving the instructions given by the-court of its own motion. ” This of itself cannot be considered to be an argument against the sufficiency of the third paragraph of the answer, or in favor of the sufficiency of the second paragraph of the reply. We must therefore look to the brief and see what precedes and succeeds the language above quoted to determine whether or not it sta,nds as a mere interpolation, or is a part of the rest of the argument. Preceding the lan*167guage above quoted, the brief is first devoted to a statement of the record, specially referring to the pleadings filed, issues made, pages of the record where rulings are to be found, etc., and then follows a copy of the specifications of error assigned in this court. Counsel next give a statement of the facts proven and also make certain extracts from the evidence. After this they discuss the rights which they claim appellant acquired under the act of 3 889, Elliott Sup., section 1016 (section 5103, Burns R. S. 1891). Then following the language above quoted they made extensive quotations from the case of Kincaid v. Indianapolis Nat'l Gas Co., supra (8 L. R. A. 602), and then refer to and quote from the evidence given on the trial.
Neither the facts established by the evidence nor the evidence itself could be considered by this court in determining the sufficiency of either the answer or the reply, hence when counsel’s entire argument was specially directed to the facts proven and the evidence introduced no other conclusion could reasonably follow than that they were pressing for consideration the questions which properly arose, requiring an examination of the evidence and a consideration of such facts.
But this is not all that convinces us that the sufficiency of these pleadings was not intended to be or was discussed, for appellant’s brief, without any further or other mention or reference to either the answer or reply than above quoted, concludes thus: “We insist that the judgment of the court below should be reversed, and inasmuch as the answers by the jury to the interrogatories indicate the parties who destroyed the pipe, and fixes its value, that the judgment of this court should simply direct the court below to render judgment against the appellees for $566.15, the value of the pipe as found by the jury, with interest and costs.”
*168This court, being one of last resort, is appealed to by one feeling himself aggrieved, and asked to correct any errors made prejudicial to his interest, in the court below, and it aims to do that duty fearlessly and without favor. Of course the rule long established and firmly adhered to, that it is presumed the judgment of the trial court is right until the contrary is made to appear, requires the complaining party to show affirmatively some ruling or error prejudicial to his rights. He must do this not only by presenting a record making this affirmative showing, but he must point out such error and adduce some argument, and if necessary cite authority to sustain and show the court the harmfulness of such ruling. Although a record may bristle with error, if they are not saved and presented to the court by argument, they must be deemed to have been waived.
But were we to assume that the correctness of the rulings relating to those pleadings were presented, we think appellant was not harmed.
The third paragraph of the answer avers, in substance, that the appellant on the 21st of August, 1891, with a large force of men entered upon one of the public highways of Madison county, on which the lands of appellees abutted and without any leave, license or authority and over the protest and objection of the abutting property-owners and without having the damages first assessed, paid, or tendered to said owners, did lay a six-inch gas pipe line in and along said highway for a distance of sixty rods, for the transportation of natural gas at a greater pressure than three hundred pounds to thesquare inch, thereby encumbering said land and thereby creating a public nuisance, and that said appellees, on said day, with due care and with as little damage as *169possible, removed said pipe line from said highway and off the lands of said appellees.
The second paragraph of the reply avers in substance that appellant was engaged in furnishing natural gas for fuel to the citizens of Indianapolis, and had expended over one million dollars in constructing the plant; “that it had laid and extended its main pipe line from Indianapolis, in a northeast direction from said city, through the counties of Marion, Hamilton and into the county of Madison, and through to the east line of said tract of land owned by Matilda Harless, Samantha Eobinett and Viola Eobinett, with the knowledge and without objection from the owners, or. either of them, and that it had also leased a large quantity of land and drilled thereon a large number of gas wells north of said Harless and Eobinett land, and had laid its pipe line from said wells north down to the northeast corner of said land, and leaving a space sixty rods along a highway, running along the east side of said land, necessary to be piped in order to connect said wells and pipe lines north with its pipe lines extending from said city of Indianapolis to the east line of said land, all of which was known to the owners of said land aforesaid at the time, and to which they made no objection; that, relying on the knowledge, silence and failure of the said owners' of said Harless land to object, as herein averred, said plaintiff placed their said gas pipe in said highway and securely screwed the same together preparatory to burying the same, as herein averred, and to connect the two ends of their said line; that, without laying its said pipe line where the same had not been laid for the space of said sixty rods, it was impossible to connect said wells and pipe line north of said Harless and Eobinett land with its said pipe laid to the east line of said land; that *170without said connection no gas could be utilized from said wells north of said land for the purpose of supplying plaintiff’s customers in the city of Indianapolis with gas from said well; that the plaintiff (appellant) had before the commission of said trespasses, entered into a large number of contracts, to-wit: ten thousand, with consumers in the city of Indianapolis, to supply them with fuel and light, and under said contracts had obligated itself to furnish a large number, to-wit: thirty thousand people in the city of Indianapolis with natural gas, etc.; that plaintiff had expended at least $30,000 in securing leases and drilling wells north of said land and in purchasing and laying pipe from said wells down to the northeast corner of said Harless and Bobinett land; that on the 21st day of August, 1891, said plaintiff (appellant) had upon the west side, and about five feet from the west line of said public highway, running along the east,side of said Harless and Bobinett land, about one thousand feet of six-inch gas pipe properly screwed together for the purpose of laying its pipe line along said highway, in order to connect the pipe line from said wells north to and along said highway, along the east side of said land to the point where said plaintiff’s line from Indianapolis strikes the east line of said Harless and Bobinett land, and which connecting link was necessary to be laid -in order to connect the two ends of said line and utilize the gas from said wells north of said land, with its line running through said land, and thereby transport the gas from its said wells north of said land to its consumers in the city of Indianapolis; that said gas pipe upon said highway did not obstruct nor in any manner interfere with the public travel on said highway or the rights of the public in said highway; that it was the intention and purpose of said plaintiff to immediately bury said gas pipe in a *171trench to be dug along the west side of said highway about three feet east of the west line thereof, and to the depth of thirty-two inches; hut that before the plaintiff could bury said pipe, the defendants, without right, on said 2'lst day of August, 1891, unlawfully broke up, injured and destroyed the same, and committed the trespasses charged in the complaint. ”
Filed January 10, 1896.In our opinion the appellant did not have the right, as against the owners of the fee, without their consent and over their protest, to construct a natural gas pipe line in and along the highway. Section 1016, Elliott Supp. Kincaid v. Indianapolis Nat. Gas Co., supra; Egbert v. Lake Shore, etc., R. W. Co., 6 Ind. App. 350, 355.
The fact that the appellant had laid natural gas pipe lines in and along other highways, without objection, on the part of appellees, did not estop them from objecting to the laying of the pipe line in and along the highway in question.
The appellant probably had the right, in appropriate proceedings, to acquire an easement in and upon so much of said highway for such pipe line. Sections 1017 and 1018, Elliott Supp.
Assuming that such circumstances might exist, or such an emergency might arise, as in the interest of public policy and the rights of the community necessity would justify the construction of a pipe line in and along a highway, over the objection of the land-owner, before such right could be acquired the owner’s damages must be assessed in proper condemnation proceedings. No such circumstances or emergency were shown to exist here.
Petition overruled.