Edison Elec. Co. v. City of Pasadena

• Decision Date: 02 May 1910
• Docket Number: 1,739.
• Citation: 178 F. 425
• Parties: EDISON ELECTRIC CO. v. CITY OF PASADENA.
• Court: U.S. Court of Appeals — Ninth Circuit

178 F. 425

EDISON ELECTRIC CO. v. CITY OF PASADENA.

No. 1,739.

United States Court of Appeals, Ninth Circuit.

May 2, 1910

The written instrument upon which this action was brought is as follows:

'Contract.

'Leasing Street Lighting System.

'This instrument, executed in duplicate by the city of Pasadena a municipal corporation within the county of Los Angeles, state of California, and herein called 'the city,' and the Edison Electric Company, a corporation organized under the laws of the state of Wyoming, and herein called 'the Company,' witnesseth: 'First. That the Company is the owner, and enjoying the use and occupation, within the public streets of the city of Pasadena, of a system of poles, wires, lamps, brackets, and other apparatus constituting a complete street equipment for the purpose of transmitting electricity, and for the purpose of lighting the public streets and places within said city, as well as furnishing light and power to others than said city. That during several years prior to the date hereof it has, with the use of a portion of said system, been furnishing the city with electric light for lighting its streets and public places. That scattered about the said city, and in places located by said city, there are now installed and in use for lighting said city, as a part of said street lighting system, fifty-four (54) long burning arc lamps, and thirteen hundred and twenty-one (1,321) 16-candle power incandescent lamps, all properly connected with the necessary apparatus for their present actual and continued use. That the city wishes to light its streets and public places at a less expense for area lighted than heretofore.

'Second. That said city and said company do agree as follows:

'Article 1. Lease.-- That the Company hereby leases unto the city, and the city hires from the Company, that part of the Company's said electric distributing system within said streets and public places, which is now, and heretofore has been, used for the purpose of furnishing the city with light; together with such extensions thereof as may during such leasehold period be installed for such public lighting purposes-- all upon the terms and conditions named in the following articles:

'Article 2. Duration.-- The leasehold period shall continue from the first day of July, 1904, to and including the 30th day of June, 1909-- a period of five years.

'Article 3. Rental.-- The city to pay to the Company as rental for the use of said system, nine thousand eight hundred and fifty-five ($9,855.00) dollars for each of the first three years of said period, and nine thousand two hundred and ninety-six and 70/100 dollars ($9,296.70) for each of the last two years of said period, said rentals for each year to be paid in equal monthly installments, and on or before the 15th day of each calendar month thereof; and as rentals for the arc lamps and incandescent lamps, the apparatus connected therewith as extensions to said system, as hereinafter provided, and on or before the 15th day of each calendar month the city shall pay to the Company as follows:

'For each arc lamp and the apparatus connected therewith, from the date of its installation until July 1st, 1907, four and 20/100 dollars ($4.20) per month; thereafter, three and 95/100 dollars per month; and for each incandescent lamp and the apparatus connected therewith from the date of its installation until July 1st, 1907, forty-five cents per month; and thereafter, forty-two and one-half cents per month; all payments to be made upon bills to be presented to the city by the Company according to the plan of presenting bills to said city in operation at the time of such presentation.

'Article 4. Maintenance.-- The Company will keep the said street lighting system in proper condition for doing the work for which it is intended and leased, and will furnish all of the necessary labor, apparatus, and equipment therefor, without expense to city. It will also furnish all necessary carbons for use in arc lamps, and all of the necessary renewals of said lamps and of the incandescent lamps, as a part of the maintenance of said system. It reserves the right to change or alter the said street system during said period in the interests of safety and efficiency, but so as not to interfere with the efficiency of said system, and so as not to change the location of any of said lamps without the consent of the city. The city shall, from time to time, as may be necessary to protect said system, arrange by the board of commissioners for trimming trees in the public streets, so as to leave a free and safe passage for the said system-- to be done at the expense of the Company, when done at its request.

'Article 5. Extensions.-- During the leasehold period, excepting the last six months thereof, the Company will make such extensions to said system as may be needed in order to properly light said city; and said extensions, when so made, shall be subject to this lease, and for which rentals shall be paid ashereinabove stated. Such extensions, however, shall be made at the request of the city, and within a reasonable time thereafter, and only upon the following conditions, to wit: In the matter of installing incandescent lamps, they shall not be installed without the consent of the Company other than in multiples of forty (40) lamps; no installation of incandescent lamps to be made of less than forty (40) without the consent of the Company, and each new installation thereafter shall be so arranged that the lamps shall be spaced not to exceed one hundred and thirty (130) feet apart, and shall be in a continuous string, unless the Company shall find that, by making segregations of other series, it may install new lamps with a part of such segregated series and still be able to maintain its series in multiples of forty (40) lamps; it being the agreement that the city shall not be entitled to have, and the Company will not be bound to furnish, new isolated groups of incandescent lamps of less than forty (40) in different parts of the city.

'During the leasehold period, excepting the last three months thereof, the Company will, at the request of the city, and within a reasonable time, install in said streets such additional like arc lamps as those herein mentioned as the city may require, together with the necessary poles, wires, and other apparatus to be used in connection therewith, provided that no such arc lamp shall be installed at a distance of more than thirteen hundred and twenty (1,320) feet from the next nearest arc lamp on said system then installed; and, when such installation of arc lamps and the necessary connections therewith shall have been made, the same shall be subject to this lease, and rentals shall be paid therefore as hereinabove stated.

'Article 6. Improved Apparatus.-- If, during said leasehold period, there shall come into use improved apparatus for lighting, which shall equal or exceed in efficiency, the said incandescent or arc lamps hereinabove mentioned, the Company shall have the right, with the approval of the city council of said city, to substitute such improved apparatus in the place of the apparatus then installed hereunder.

'Article 7. Use by Company.-- The Company reserves to itself the right to use its entire street distributing system above mentioned for its own private business, in distributing light and power to its customers, so as in no way to prevent the use thereof by the city for the purpose of lighting its public streets and places. The distributing wires of said system connected with said street lamps, and so to be devoted by the city to its public uses, are to be subject to the exclusive use of the city, and shall be maintained separately from, and disconnected with, the other distributing wires of the Company, and shall be so maintained that the city may, at the Company's power house, receive into said system such electric energy and power as it may need and acquire for the purpose of its public lighting. The city may, from such sources as it may procure electric power, conduct the same into said power house, and from there into said street distributing system so to be used by the city, and may install and maintain in the Company's said power house such system of switches, meters, transformers, and apparatus as it may need in receiving therein and discharging therefrom such electricity as it may require for said purpose.

'Article 8. Defaults.-- If the Company shall be prevented by strikes, by any court, by public authority, or by accidents beyond its control, from keeping said system in condition here promised, it shall not be liable in damages to the city for such failure; but it will, immediately after the cause of such prevention shall have been removed, proceed to and diligently prosecute to completion, such repairs as may be necessary to enable it to replace and to keep said system in such condition. A proportionate and equitable deduction of the rental, based on

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