City of Las Vegas v. Cragin Industries, Inc.
| Decision Date | 30 December 1970 |
| Docket Number | No. 6165,No. 4,No. 1321,No. 476,R,4,476,1321,6165 |
| Citation | 478 P.2d 585,86 Nev. 933 |
| Parties | CITY OF LAS VEGAS, Nevada; and Nevada Power Company, Appellants, v. CRAGIN INDUSTRIES, INC.. a Nevada corporation, on behalf of itself and all other taxpayers of the City of Las Vegas, County of Clark, State of Nevada, and Cragin Industries, Inc., a Nevada, corporation, on behalf of itself and all other property owners with property abutting on and along Charleston Boulevard between Upland Boulevard and Desert Lane in Las Vegas, Clark County, Nevada, and Cragin Industries, Inc., a Nevada corporation, on behalf of itself and all other property owners of Assessment Unita as contained in Las Vegas, Nevada, Special Assessment Districtpurportedly created by Las Vegas, Nevada, Ordinanceespondents. |
| Court | Nevada Supreme Court |
Samuel P. Cowley, Jr., V. Gray Gubler, Las Vegas, for Nevada power co.
George F. Ogilvie, Jr., Las Vegas, for City of Las Vegas.
Carl J. Christensen, Las Vegas, for respondents.
On May 3, 1929, the city of Las Vegas and the Southern Nevada Power Company, predecessor of Nevada Power Company, one of the appellants, entered into a franchise agreement which granted to the power company the right to locate its electric poles and wires within the city. The term of the franchise was for 50 years and it was in effect at the time this litigation arose.
On March 20, 1968, the board of commissioners of the city of Las Vegas adopted ordinance No. 1321, establishing seven assessment units to effectuate improvements in the designated localities. Notice of the proposed assessment districts had been published and hearings held. In compliance with NRS 271.320(1), the commission implemented the plan for improvements after determining that less than a majority of landowners in Assessment Units 1, 2, 3, 4, 6, 7 and 8 had filed written or oral protests.
The plan for Unit 4 in Special Assessment District No. 476, the only area here involved, included the placement of mercury vapor luminaries on steel lighting standards with concrete bases and underground circuits.
Thereafter on March 5, 1969, the city and Nevada Power Company entered into a contractual agreement designated 'Joint Ownership Agreement.' Under the terms of that agreement the parties agreed that the power company would install extensions upon the top of the steel light poles and string electric wires therefrom. Each contracting party was to retain 50% ownership of the poles. The express purpose of this contractual agreement was to improve the appearance of the neighborhood adjacent to West Charleston Boulevard between Cashman Drive and Desert Lane, by combining city and power company facilities on one set of poles.
On April 10, 1969, Cragin Industries, Inc., filed suit for itself and on behalf of all taxpayers in the city; all property owners abutting West Charleston Boulevard, and on behalf of all property owners in Assessment Unit 4. The complaint sought a permanent injunction against the city and power company prohibiting the placement of electrical wires above ground; a declaration that the Joint Ownership Agreement was null, void, against public policy and contrary to Ordinance 1321 requiring underground circuits.
In the answers filed by the city and the power company they defended upon the grounds that the power company, had for 10 years previous to the litigation, maintained overhead electrical wires on the opposite side of the street and that the franchise agreement afforded them the right to place their wires in the contested location.
The city and the power company on one side and the respondents on the other moved for summary judgment. Both the city and the power company contended that there was no genuine issue as to any material fact to be tried.
Summary judgment was entered in favor of the respondents permanently enjoining the city and the power company from constructing or maintaining overhead electrical power lines along West Charleston Boulevard in Las Vegas, Clark County, Nevada; declaring the agreement between the appellants dated March 5, 1969, to be null, void, against public policy and of no force and effect, and allowing attorney fees in the amount of $1,500. 1 It is from this part of the judgment that the appeal is taken.
The appellants contend that the trial court was without jurisdiction to enter the summary judgment and that in any event summary judgment was improperly granted because there remained genuine issues of fact to be litigated. However, the only real issue, before this court for consideration, is the validity of the agreement dated March 5, 1969, between the city and the power company authorizing the power company to install overhead wiring on extensions of steel light poles in Special Assessment District No. 476. The district court found the agreement to be null, void, against public policy and of no force and effect. We agree with the finding of the district court.
Because all the parties moved for summary judgment, the trial court was at liberty to find that the parties had conceded that there remained no material question of fact and that the case could be determined on a question of law. Although the trial court did not specifically find that there remained no genuine issue of fact, the appellants, in their motions for summary judgment both alleged that there is 'no genuine issue as to any material fact' and they are now precluded from changing their position upon this appeal. Fox v. Johnson & Wimsatt, 75 U.S.App.D.C. 211, 127 F.2d 729 (1942); Steiner v. United States, 36 F.Supp. 496 (D.C.D.C.1941); Garrett Freightlines Inc. v. United States, 236 F.Supp. 594 (D.C.Idaho 1964).
The appellants' contention that the trial court was without jurisdiction to enter summary judgment in this case because the Public Service Commission of Nevada was vested with the original jurisdiction is also without merit. The appellants' reliance on NRS 704.250 2 and 704.780(1)(c) 3 (repealed by Chap. 501, Statutes of Nevada 1969), as well as their reliance on the cases cited in support of their contention is misplaced.
The power company's claims that the judgment of the trial court enjoining them from placing their electrical wires on the steel electric poles would affect their rates by forcing them to expend additional sums and therefore amounted to authorization of rate-making by ordinance. Any additional installation cost is so remote and indirect to rate-making that the power company's claim cannot reasonably be accepted by this court. Cf. York Water Co. v. City of York, 250 Pa. 115, 95 A. 396 (1915). Although indirect costs may be appropriately considered by a public service commission in establishing reasonable rates for a utility, it does not follow that every action of a governmental subdivision which could conceivably cause additional costs to a utility amounts to an act of rate-making.
The Public Service Commission of Nevada has no inherent power. Its only source of power lies in constitutional and statutory provisions, and those provisions are to be strictly construed. The authorization and mandate of the legislature that the commission should prescribe standards for the maintenance, use and operation of electric poles, wires, cables, and appliances of all public utilities within the state engaged in the business of furnishing electric power, light and energy, or the authorization to make such further rules and regulations regarding the construction, maintenance and operation of the plants and devices used to generate and distribute electricity, encompasses the quantity and quality of service. Included in the quality of service would be broad safety standards. However, this statutory authorization and direction does not infringe upon a governmental subdivision's power to determine the reasonable location of plants, electric poles, wires, cables, devices and appliances of all public utilities.
Although 'safety' is mentioned in the respondents' complaint, it is only in the nature of comment and the question of safety has not been placed in issue by the pleadings.
We do not reach the respondent's contentions that an abutting property owner must show special irreparable injury different in kind from that sustained by the general public, in order to maintain an action challenging a particular use of a public street or that identity or community of interests is essential to class or representative suit.
Las Vegas ordinance No. 1321 required underground circuits. That requirement must be construed to include all wiring any way connected to the steel lighting standards authorized in the special assessment district and not merely the...
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