Arkansas Power & Light Co. v. West Memphis Power & Water Co.

• Decision Date: 13 July 1931
• Docket Number: 108
• Citation: 41 S.W.2d 755,184 Ark. 206
• Parties: ARKANSAS POWER & LIGHT COMPANY v. WEST MEMPHIS POWER & WATER COMPANY
• Court: Arkansas Supreme Court

41 S.W.2d 755

184 Ark. 206

ARKANSAS POWER & LIGHT COMPANY v. WEST MEMPHIS POWER & WATER COMPANY

No. 108

Supreme Court of Arkansas

July 13, 1931

Appeal from Crittenden Chancery Court; J. M. Futrell, Chancellor affirmed.

Decree affirmed.

Wils Davis, Robinson, House & Moses and Harry E Meek, for appellant.

Chas E. Sullenger and Davis & Brownback, for appellee.

BUTLER J. HUMPHREYS, J., dissents.

OPINION

BUTLER, J.

The appellant, Arkansas Power & Light Company, as assignee of a permit from the county court, and by virtue of an act of March 28, 1907, erected poles along the highway in Crittenden County which passed through, and was the main street of the village of West Memphis, with distribution lines and other equipment of the approximate value of $ 68,000. With this equipment so erected, the appellant power company, before and on March 21, 1927, was serving with electric current seventy residents, seventy-four commercial customers and one gin in the said village, which service had been increased by the 20th day of November, 1930, so as to furnish electricity to 109 residents, 97 business customers and one industrial consumer.

On the 21st day of March, 1927, the aforesaid village became the incorporated town of West Memphis by order of the county court of Crittenden County, which order, on appeal, was affirmed by this court on July 2, 1928, in the case of Bragg v. Thompson, 177 Ark. 870, 9 S.W.2d 24. The appellant did not, and has not, procured any franchise from said incorporated town granting to it the privilege to use the streets, alleys and public grounds of the town in the conduct of its business, but continued to use said streets and alleys and to extend its lines thereon after the incorporation as before.

On May 14, 1930, at a meeting of the town council of said town, a grant of an exclusive franchise was made to Chas. E. Sullenger to erect and operate an electric light system, and at the same meeting and by separate ordinance he was granted an exclusive franchise to erect and operate a waterworks system. These franchises were assigned to the appellee, West Memphis Power & Water Company, on the 15th day of August, 1930, and appellant filed this suit on the 16th of August, following, setting up the above- mentioned facts and alleging that the franchise under which appellee sought to operate was invalid because it was passed at a special meeting of the council, of which no notice had been given, and no notice given or received by one of the councilmen who did not attend said meeting, and who had no knowledge thereof until after the meeting was had. Appellant further alleged that said ordinance granting the exclusive right to erect and operate equipment for the generation and distribution of electricity was an invasion of its rights, and that the appellee was threatening to proceed with the construction authorized by the franchises and, by virtue of the rights granted therein, to undertake to force the appellant to remove its equipment, etc., and prayed for an order enjoining the appellees from constructing the electrical equipment and from in any way interfering with the rights of the appellant. On the 20th of October, 1930, the appellant filed its motion for a temporary injunction restraining the appellee, who at that time was proceeding with the erection of a light plant, from further proceeding, and from making any other expenditure until the final hearing of the case. This motion was overruled by the court, and the appellee proceeded with the erection of its equipment, completing the same about the 12th day of December, 1930, at a cost of approximately $ 50,000, and was on that date serving about sixty customers with electricity.

Much testimony was taken which established the facts above stated and which, in addition, was directed to the question of the validity of the franchise granted by the ordinance of May 14, 1930, but which will not be set out here because that question is immaterial, as will hereafter appear. On the final hearing the chancellor denied the relief prayed by the appellant, and dismissed its complaint for want of equity, from which decree is this appeal.

In the beginning of our investigation this question presents itself: Was the Arkansas Power & Light Company in a position to question the validity of the franchise under which appellee has acted? After a careful consideration, with the aid of such authorities as have been cited by counsel, we have concluded that that question must be answered in the negative, and such an answer renders all other issues raised unimportant. It is to be noted that the town of West Memphis is not contesting the validity of the ordinance of May 14, 1930, or attempting to disavow it in any particular. In an able and persuasive brief counsel for the appellant has contended that the right it acquired and asserted under the permit of the county court of Crittenden County and under the statute, supra, has invested it with property rights which would warrant its contesting an unwarranted intrusion by another on the premises it occupied. It is doubtful whether the permit of the Crittenden County court has any validity, but, irrespective of that order, the appellant occupied the highway leading through West Memphis by virtue of the act of March 28, 1907, now § 4043 of Crawford & Moses' Digest, which provides:

"Any corporation organized under the laws of this State for the purpose of generating, transmitting, and supplying electricity for public use may construct, operate and maintain such lines of wire, cables, poles, etc., necessary for the transmission of electricity along and over the public highways, and the streets of the cities and towns of the State or across or under the waters, and over any lands or public works belonging to the State, and on and over the lands of private individuals, and upon, along and parallel to any railroad or turnpike of this State, and on and over the bridges, trestles and structures of such railroads; and in constructing such dams as the corporation may be authorized to construct, for the purpose of generating electricity by water power, may flow the lands above such dams with backwater resulting from such construction. Provided, the ordinary use of such public highways, streets, works, railroads, bridges, trestles, or structures and turnpikes be not thereby obstructed, or the navigation of said waters impeded, and that just damages shall be paid to the owners of such lands, railroads and turnpikes; and provided further, that the permission of the proper municipal authorities shall be obtained for the use of such streets."

It will be seen from this statute that when appellant erected its light poles and strung its wires along the highway leading through the village of West Memphis and served those with electricity who lived on the highway, it was rightfully doing so. When it entered on the streets of the village with its poles and other equipment, however, no right could be predicated on the statute, for at that time such streets and alleys were privately owned, and no one had the right to use them in any way except the permissive right of passage given to...