Corpus Christi Gas Co. v. City of Corpus Christi

• Decision Date: 17 March 1926
• Docket Number: (No. 7519.)
• Citation: 283 S.W. 281
• Parties: CORPUS CHRISTI GAS CO. v. CITY OF CORPUS CHRISTI et al.
• Court: Texas Court of Appeals

283 S.W. 281

CORPUS CHRISTI GAS CO. v. CITY OF CORPUS CHRISTI et al.

(No. 7519.)

Court of Civil Appeals of Texas. San Antonio.

March 17, 1926.

Rehearing Denied April 17, 1926.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Suit by the City of Corpus Christi against the Corpus Christi Gas Company and others. Decree for plaintiff, and named defendant appeals. Reversed and remanded, with instructions.

Templeton, Brooks, Napier & Brown, of San Antonio, for appellant.

James M. Taylor and Boone & Savage, all of Corpus Christi, for appellees.

COBBS, J.

The city of Corpus Christi brought this suit against the appellant Corpus Christi Gas Company, White Point Production Company, and H. S. Bettes and L. T. Prewitt, to restrain them from digging trenches along and across certain streets of the city of Corpus Christi and from laying pipes therein for the purpose of bringing in and transporting natural gas. A temporary restraining order was granted by the district judge and thereafter made permanent.

Appellant answered fully, and by way of cross-action set up its franchise rights granted to it by appellee city, under which the right was given to distribute natural gas in said city and to dig trenches and lay pipes in the streets for that purpose. On the hearing thereof the court entered its decree denying any relief to appellant and perpetuating the injunction. The judgment, in part, is as follows:

"The court finds that in attempting to lay said feeder line from the plant of the Corpus Christi Gas Company to connect with the line of the White Point Production Company without a permit from the city of Corpus Christi, as complained of by plaintiff herein, the defendants Corpus Christi Gas Company, White Point Production Company, and Bettes and Prewitt were acting together with a common purpose and design in doing and threatening to do the things complained of by plaintiff.

"After considering the evidence and the law applicable to this cause and the argument, both oral and written, of the counsel, the court concludes as a matter of law that the defendant Corpus Christi Gas Company and its predecessors in the ownership of said franchise have not now, and have never had, the franchise, privilege, and right to distribute natural gas in the city of Corpus Christi; the provisions referring to natural gas in said franchise being without consideration and without mutuality, and therefore not binding and not enforceable.

"The court concludes as a matter of law that the permits for which applications were made by the Corpus Christi Gas Company to the city council of the city of Corpus Christi were not such permits and applications as contemplated by the provisions of the franchise for permits for ordinary extensions to consumers in the ordinary course of business, but were permits requested for the purpose of obtaining and distributing a supply of natural gas. * * *

"It is therefore, on this the 25th day of July, A. D. 1925, ordered, adjudged, and decreed by the court that the prayer of the defendant asking for the issuance of the writ of mandamus or mandatory injunction or other equitable writ or order of this court as set out in the cross-action of the Corpus Christi Gas Company be and the same is hereby in all things refused and denied, and that as to such cross-action the plaintiff city of Corpus Christi and the defendants in said cross-action, P. G. Lovenskiold, mayor, and H. B. Johnson, W. J. Smith, D. A. Segrest, and W. W. Chapman, commissioners, and J. M. Taylor, city attorney, and J. M. Shaw, city marshal, and Delmas Givens, judge of corporation court, go hence without day."

The court conceived the erroneous idea that appellant had no right under its charter to distribute natural gas. The rights of appellant if any, grow out of its charter right contained in Section 7 of the franchise, to-wit:

"If natural gas...