City of Newton v. Levis
| Decision Date | 22 March 1897 |
| Docket Number | 879. |
| Parties | CITY OF NEWTON et al. v. LEVIS. |
| Court | U.S. Court of Appeals — Eighth Circuit |
This is an appeal under the seventh section of the act to establish the circuit courts of appeals, approved March 3, 1891 (26 Stat. 826, 828, c. 517, Sec. 7; 1 Supp.Rev.St. 904), as amended by the act of February 18, 1895 (28 Stat. 666, c 96), from an interlocutory decree which granted a preliminary injunction on a bill exhibited in the court below by the appellee, Howard C. Levis. These facts were disclosed by the bill: On January 23, 1885, the appellant the city of Newton a municipal corporation, made a contract with the Newton Electric Light Company to pay it $1,000 per annum for five years for furnishing that city with electric light for street purposes, and the electric light company furnished the light under the contract until April 1, 1888, when it assigned its contract to the Thomson-Houston Electric Company. On April 16, 1888, the city ratified the assignment, and requested the Thomson-Houston company to fulfill the contract; and thereupon it furnished electric light to the city under this contract until it expired, on January 23, 1890. On January 20, 1887, the city of Newton enacted its ordinance, No. 129 by which it granted to H. M. Vaughan and his assigns the permanent and perpetual right to erect and maintain in the streets and alleys of the city of Newton, in such manner as would not obstruct the use of or travel over them, the necessary poles and wires to transmit electric light and power throughout the city. In reliance upon this franchise Vaughan and the Thomson-Houston Company immediately purchased real estate in the city of Newton, constructed an electric plant thereon, erected poles throughout the city, strung wires upon them, and furnished the inhabitants of the city, and the city itself, with electric light and power. In the purchase of this real estate and the erection of these improvements, they expended more than $12,000 before 1889; and it was from this plant that the Thomson-Houston Company furnished light to the city, under the contract of 1885, from April 1, 1888, until January 23, 1890. In October, 1887, Vaughan assigned all his rights under the ordinance, and conveyed all his interest in the electric plant and in the poles and wires, to the Thomson-Houston Electric Company. In 1890 the city of Newton constructed an electric plant, and commenced, and has since continued, to furnish electric light and power to private consumers, and to light its own streets. On March 1, 1896, the Thomson-Houston Company sold and conveyed its electric plant, the land on which it was situated, all its poles and wires in the city of Newton, and all its rights and privileges under Ordinance No. 129, to the Newton Electric Company, a corporation, for $16,000; and the latter corporation made a trust deed of this property to the appellee, Howard C. Levis, to secure the payment of a debt of $10,000 on account of the purchase price of this property, which was evidenced by its promissory notes. In March, 1896, the population of the city of Newton was about 3,500. The city and the Newton Electric Company were active competitors with each other for the business of furnishing electric light and power to private consumers in that city, and had about an equal number of customers. Thereupon, on March 30, 1896, the city passed its ordinance, No. 211, which by its terms repealed Ordinance No. 129, and required the electric company to remove all its poles and wires from the streets of the city within 90 days. The electric company failed to do this, and the appellants, the city and A. K. Lufkin, its mayor, were about to cut down the poles and remove them and the wires of this company by force, when the appellee filed his bill in the court below. In addition to the foregoing facts, he alleged that the electric company was insolvent; that it had no property except the electric plant, the land on which it stood, its poles and wires, and that it was unable and unwilling to resist the destruction of this property by the city; and that the security held by the appellee for the payment of the $10,000 would be utterly destroyed unless the appellants were enjoined from taking their threatened action. No demurrer or answer was interposed to this bill, and on motion the court enjoined the appellants from interfering with the poles or wires of the electric company until the further order of the court. The appeal is from the decree granting this injunction.
N. T. Guernsey (O. C. Meredith and Wm. H. Baily were with him on brief), for appellants.
William Connor and James S. Cummins, for appellee.
Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.
SANBORN Circuit Judge, after stating the case as above, .
To state this case is to decide it. In...
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