City of Joseph v. Joseph Water-Works Co.

• Decision Date: 31 January 1911
• Citation: 57 Or. 586,112 P. 1083
• Parties: CITY OF JOSEPH v. JOSEPH WATERWORKS CO.
• Court: Oregon Supreme Court

112 P. 1083

57 Or. 586

CITY OF JOSEPH v. JOSEPH WATERWORKS CO.

Supreme Court of Oregon

January 31, 1911

On petition for rehearing. Petition denied.

For former opinion, see 111 P. 864.

EAKIN, C.J.

By the petition defendant urges that section 4 of the ordinance does not limit the duration of the franchise; but, after a further consideration, we are confirmed in our first decision.

We do not hold that section 1 of the ordinance, standing alone, would create a perpetual franchise; but the answer so treats it, and seeks to enjoin the city from installing a municipal plant. However that question is immaterial here.

It is urged that the purpose of the suit is to secure a decree adjudging that defendant is not entitled to any rights in any of the streets of the city, and not alone to prevent it from extending its mains into streets not before occupied, as held in the opinion; but the answer expressly alleges that defendant is extending its water mains and service pipes and making the necessary excavations therefor, and that these acts are the alleged wrongful acts complained of in the complaint.

We have not considered, nor attempted to decide, what defendant's status may be after the expiration of the franchise, as that question is not presented by the issues nor discussed in the briefs, and is a matter for future determination. The denials are limited by the allegations of the answer, which, in effect, admit the facts entitling plaintiff to the relief here granted, and the decree is properly entered.

The motion is denied.