On Motion for Rehearing.
in concluding that the trial court erred in refusing to dissolve the temporary writ of injunction, we- were actuated by what we understand to be the proper rule of law governing the respective rights of appellant as owner of the fee and appellee as owner of the easement, viz. the right to construct and maintain a pipe line for the purpose of conveying gas for distribution in the prosecution of its business as a vendor of gas. The right of property, it is true, is no more vested in the appellant as owner of the fee than the right of use for the purpose of enjoying the benefits that its easement secured to appellee. In this respect appellee owns the dominant estate. The plan of construction and character of material used by it in the original installation of its pipe line, as the only means by which appellee was to enjoy the property granted it, was not a part of the right of way granted. While appellant, as owner of the feé, could not use his right of property so as to in effect deprive appellee of the enjoyment of its right of way, on the other hand, appellee did not acquire the right to unnecessarily continue the use of the pipe line as originally installed, if such use would in effect destroy the right of the appellant to so use his proprietorship as the owner of the fee in the land as not to deny to appellee the enjoyment of its property right, provided such use would leave available to appellee other well-known plans and specifications for the reconstruction of its pipe line which would not impair its right of use and at the same time would enable appellant to enjoy his right of property; that is, such change in the pipe line as originally constructed by appellee could be made as to respect and protect the property rights alike of appellant and appellee. This we were justified in concluding could be accomplished from the testimony of the witnesses Smith and Herbst, which we accepted as being sufficient to show that it was not necessary, in order for appellee to enjoy its franchise or right of way, to use the means originally adopted by it in installing the pipe line now in use, but that there was available to appellee means of installing a gas pipe line that would secure to it the full enjoyment of its franchise, with as much safety .for the protection of its property rights as the means *958now used, and which would enable the appellant to enjoy the use of his property for the purposes for which he has occasion to use it under the developments due to commercial progress of the section of the country where appellant’s land is located.
However, in consideration of the fact that, to dissolve the injunction, would give the appellant an opportunity to destroy the subject-matter of the litigation by constructing the improvements sought to be prohibited from being erected, and, further, on account of the public interest necessarily involved in the proper maintenance of appellee’s facilities for receiving and distributing gas to the public, and as of necessity the rights of the parties that should be safeguarded by appropriate judgment in reference thereto upon a full hearing, we have determined that we erred in holding that the trial judge abused his discretion in refusing to dissolve the temporary writ of injunction.
Therefore, in order to preserve the status of the parties in reference thereto, appel-lee’s motion for rehearing is granted, and the judgment of this court,- reversing the judgment of the court below, is set aside, and the judgment of the lower court in all things affirmed.