City of Zanesville v. Zanesville Gas-Light Co.

• Decision Date: 10 December 1889
• Parties: CITY OF ZANESVILLE v. ZANESVILLE GAS-LIGHT CO.
• Court: Ohio Supreme Court

23 N.E. 55

47 Ohio St. 1

CITY OF ZANESVILLE v. ZANESVILLE GAS-LIGHT CO.

Supreme Court of Ohio.

December 10, 1889

[Copyrighted Material Omitted]

Error to the district court of Muskingum county.

The action below was a suit commenced by the gas company against the city, to enjoin it and its agents from using the gas of the company. The petition is as follows:

‘ The Zanesville Gas-Light Company, for cause of action against the defendant, says that the defendant the city of Zanesville is a municipal corporation duly organized under the laws of Ohio, and, as such, is successor to the town of Zanesville. That, by an act of the general assembly of the state of Ohio passed the 12th day of March, A. D. 1849, this plaintiff was duly and legally incorporated, and that it has ever since been engaged in the manufacture and sale of gas in the city of Zanesville, Ohio. A copy of said act of the general assembly is hereunto attached, marked ‘ A,’ and made part of this petition. That on the 4th day of June 1849, the mayor, common council, and recorder of the then town (now the defendant, the city) of Zanesville, duly and legally passed an ordinance authorizing the plaintiff to occupy and use the streets and alleys of said town, (now city,) for the purpose of laying therein their gas-pipes, to convey gas to the purchasers thereof. That the terms upon which plaintiff was authorized by said ordinance to lay its pipes in the streets and alleys of said town were that it (said plaintiff) should furnish gas to said town, for the purpose of lighting the same, at a price not exceeding $2.50 per thousand cubic feet, or $15 per burner, per annum, to the public lamps of said town. A copy of said ordinance is hereto attached, marked ‘ B,’ and made part of this petition. That on the 11th day of June, 1849, this plaintiff accepted, in writing, the terms of said ordinance, and thereupon this plaintiff proceeded to lay its pipes in the streets and alleys of said town; and that, up to the present time, it has continued to occupy said streets and alleys for the purposes aforesaid, and, up to the time of the transactions hereinafter complained of, has, with the acquiescence of said city of Zanesville, enjoyed the privilege of excavating and digging in said streets and alleys, for the purposes of laying, cutting, repairing, and taking up its pipes, at pleasure. That, since the passage of said ordinance, and its acceptance by this plaintiff, the plaintiff has furnished to the defendant the city of Zanesville all the gas it required for the purpose of lighting said town, according to the terms of said ordinance excepting when, by mutual consent and agreement, said terms have been varied. That said gas has been furnished, from time to time, under contracts made with said city of Zanesville and that on the 1st day of April, 1884, all contracts theretofore existing between the city of Zanesville and this plaintiff expired, except as hereinafter stated, and since the 1st day of April, 1884, there has been no contract between the said city and plaintiff, except for the supply of gas to a few posts in said city, which are supplied under a special contract, dated the 8th day of October, 1883. That said plaintiff has never supplied gas to said city, except under written contracts for the same. That on or about the 12th day of February, 1884, the plaintiff notified the defendant the city of Zanesville that it was unwilling to furnish gas to said city after the 1st day of April, 1884 except to said few gas-posts mentioned in said special contract, unless a contract therefor should be first made between it and said city, in writing. That on the 10th day of March, 1884, the defendant the city of Zanesville caused its clerk to advertise for proposals to light the street lamps and public buildings of said city after April 1, 1884, and reserved the right in said proposal to reject any and all bids. That the plaintiff, in response to said advertisement, in writing, proposed to furnish gas to light said city at the price of $1.40 per thousand cubic feet for all gas which would pass through meters, and for the sum of $14.50 per burner or post for the public lamps of said city. That the city has not accepted the offer so made. That the plaintiff is ready and willing to furnish to the defendant the city of Zanesville the gas necessary to light said city according to the terms of said proposal, or according to the terms of said ordinance of June 4, 1849, whenever the said city is willing to contract therefor. That by mutual consent it has been so arranged between plaintiff and the defendant the city of Zanesville that all the pipes laid in said streets and alleys from which the gas is taken to supply the various lamps of said city are the property of this plaintiff, and also that the burners of the street lamps of said city are also the property of this plaintiff; but that the pipes leading from the main pipes of this plaintiff to and through the posts, together with the posts and lamps thereon, are the property of the defendant the city of Zanesville, and, by like mutual consent, that the said pipes of the city have been attached to the pipes of this plaintiff without any means of shutting off the gas from said lamps of the city, except by cutting the pipes belonging to this plaintiff, or by disconnecting the same from the pipes of said defendant the city of Zanesville; and that the pipes have been, by such mutual consent, so arranged that the gas cannot be shut off from the city lamps along the line where there are private consumers without also shutting the gas off from said private consumers, without disconnecting said pipes, as aforesaid. That on the 28th day of January, 1884, the defendant the city of Zanesville, claiming the right to fix the price that it and the private consumers in the city of Zanesville should pay for the gas supplied thereto by the plaintiff, passed an ordinance, of which a copy is hereunto attached, marked ‘ C,’ and made part of this petition; and the defendant the city of Zanesville claims that the plaintiff is by law bound to furnish it gas, for the purpose of lighting said city, at the prices specified in said ordinance. That the plaintiff was created before the adoption of the present constitution of Ohio, and the plaintiff avers that it has never accepted any of the provisions of title 2, pt. 2, Rev. St. Ohio, or the provisions of any laws of the state of Ohio passed since the adoption of the present constitution of Ohio; and the plaintiff avers that it has never taken any action under or in pursuance of any of the provisions of title 2, pt. 2, Rev. St., or any laws of Ohio passed since the adoption of the present constitution. That this plaintiff is not governed by any law passed by the legislature of Ohio since the adoption of the present constitution of Ohio; and the plaintiff avers that it is governed and controlled only by the laws in force on the 12th day of March, 1849, when it was created. That the defendant the city of Zanesville refused to enter into any contract fixing the price of gas to be furnished by the plaintiff to the said city of Zanesville, defendant. The city of Zanesville having failed to consider the said bid of this plaintiff to light said public lamps and public buildings of said city, the plaintiff, on the 19th day of April, 1884, requested said defendant the city of Zanesville to either reject or accept its said bid on or before the 1st day of May, 1884. The said city has, up to the present time, ignored said request; and the city council of said city of Zanesville, defendant, refused to allow said paper to be read in its presence. On the 26th day of April, 1884, this plaintiff again notified the defendant the city of Zanesville, Ohio, that it would not furnish any gas for the lighting of the public lamps and public buildings of said city, except under a written contract to be made by the plaintiff and the said defendant the city of Zanesville; and, on said last-named date, this plaintiff requested and directed said city, defendant, not to use any gas for any purpose after said date, except to the following-named gas-posts, to-wit: One on Turner street and Wickham alley; one on Park street and Maple alley; one on Pearl and Willow streets; one on West Main street and Book's alley; one on North Downer street; one on Wheeling road, at W. Harris' stable; one on Fell street, Fourth ward; one on East Pierce street, Ninth ward; two on Adamsville Road extension; one on West Main and Hedge streets; and two on Chapman street. That the defendant the city of Zanesville, Ohio, disregarded said notice and request, and has since said time continued to use the gas of this plaintiff in the public streets and alleys of said city, and threatens that it will continue to use said gas at its pleasure, without the consent of this plaintiff. That afterwards this plaintiff removed its burners from about two hundred and fifty of the public lamps of said city. Said removal was made carefully, and the pipes of said city were carefully capped, and no injury to said posts, pipes, or lamps was done. That on or about the 15th day of May, 1884, this plaintiff, desiring to disconnect its pipes from the pipes belonging to the said city, defendant, leading to the lampposts of said city, in all places on its said main pipes from which and where no private consumers were furnished with gas, proceeded to dig down to its said pipes, and cut the same; but the defendant the city of Zanesville, for the purpose of preventing this plaintiff from cutting its (this plaintiff's) pipes, and thereby stopping the flow of gas to the public lamps of said defendant the city of Zanesville, by force, prevented the employes of this plaintiff from disconnecting its pipes from the public...