King v. Farmers Elec. Coop. Inc.

• Decision Date: 30 July 1952
• Docket Number: No. 5387,5387
• Parties: KING v. FARMERS ELECTRIC COOP. INC.
• Court: New Mexico Supreme Court

Page 1041

246 P.2d 1041

56 N.M. 552

KING v. FARMERS ELECTRIC COOP. INC.

No. 5387.

Supreme Court of New Mexico.

July 30, 1952.

Earl E. Hartley, Lynell G. Skarda, Clovis, for appellant.

H. R. Parsons, Fort Sumner, Smith & Smith, Clovis, for appellee.

LUJAN, Chief Justice.

Fred C. King, hereinafter referred to as plaintiff, brought action in the District Court of De Baca County, against the Farmers Electric Cooperative, Inc., of New Mexico, hereinafter referred to as the Cooperative, to enjoin it from depriving him of electric service through its transmission line because of his refusal to grant it a right-of-way easement without compensation and restore electric service theretofore furnished him.

The complaint alleges that it is a nonprofit, cooperative, mutual organization organized under the provisions of Section 48-401 et seq., of the Statutes of New Mexico of 1941, as amended for the purpose of furnishing its members with electric energy for their use and operation and private and other consumption; that its main office is located in Clovis, New Mexico; that plaintiff became a member on February 14, 1948, and has continued to be such a member rightfully to the date of filing the complaint; that as such member he is entitled to all the rights, privileges and benefits incidental to and inuring to its members; that he has complied with all valid laws and regulations of cooperative; that he has performed all duties legally incumbent upon him and is ready, able and willing to continue compliance with said valid by-laws and regulations and to perform his legal duties flowing from his membership; that at the time of his becoming a member, the cooperative had and still has an electric power transmission line available to serve plaintiff at and upon Highway No. 60; that plaintiff had and still has his combined home and ranch headquarters near said transmission line; that being located as aforesaid plaintiff sought membership of the cooperative and the consequent electric power service which it was serving and still is serving members by means of said transmission line; that cooperative accepted the plaintiff as a member and began furnishing its electric service over said transmission line and has continued to so serve plaintiff until its wrongful discontinuance of such service; that cooperative has the only transmission line available to furnish plaintiff electricity; that cooperative has made charges for the electric service it has rendered to him and that plaintiff had promptly paid all charges and is ready, able and willing to promptly pay all such charges made in the future by the cooperative; that on June 6, 1950, cooperative without right or legal justification and contrary to the membership contractual rights of the plaintiff, willfully, recklessly, spitefully and maliciously discontinued its electric service; that despite plaintiff's protest and demand for the restoration of said service the cooperative still fails and refuses plaintiff the electric service it has heretofore furnished him; that on June 10, 1950, plaintiff made formal and written demand upon the cooperative for said restoration of electric service; that plaintiff has no plain, speedy or adequate remedy at law in the premises for the wrong thus done him by cooperative; that plaintiff has no remedy at law adequate to the restoration of his membership right; that electric service is not obtainable except through the use of cooperative's transmission of power over its line; that by cooperative's wrongful acts immediate and irreparable loss has been and is daily sustained by plaintiff; that by reason of the form and nature of cooperative's organization a contract exists between it and all its members; that it is obligated to make available to all its members in good standing all the electric service it is able to furnish; that cooperative has violated its obligation although the plaintiff has fully fulfilled his obligations arising under said contract and is ready, able and willing to do so in the future; and praying that cooperative be required to perform its contract with plaintiff; that cooperative be enjoined to restore its electric service to plaintiff; and that plaintiff have actual and exemplary damages.

The lower court made and entered the following order:

'The above styled and numbered matter coming on to be heard by the Court and it clearly appearing to the Court from specific facts shown in the verified Complaint that immediate and irreparable loss or damage will result to the applicant before this matter can be heard on notice.'

It is ordered, adjudged and directed, as follows:

'1. That the defendant immediately reconnect its lines to plaintiff's premises and immediately restore its former service of furnishing electricity to plaintiff as one of its members; and that on said restoration being made that the defendant be, and it is hereby temporarily enjoined from disconnecting the plaintiff from said service and enjoined from failing to serve the plaintiff with electricity and energy.'

Thereafter, cooperative answered denying that it had wrongfully refused to continue service to plaintiff and further denying that plaintiff had fulfilled his contractual obligations to cooperative but affirmatively alleging that plaintiff violated his membership contract, was demanding electric service on a preferential basis, and that plaintiff had been legally expelled from membership in defendant and his electric service legally discontinued.

The court found:

'1. That defendant, Farmers Electric Cooperative, Inc. of New Mexico, is a rural electric cooperative organized and doing business pursuant to Section 48-401, et seq., New Mexico Statutes 1941 Annotated. That the purpose of cooperatives organized under the Rural Electric Cooperative Act, ibid, is the supplying of electric energy and promoting and extending the use thereof in rural areas.

'2. That the Plaintiff became a member of Defendant Cooperative on February 14, 1948.

'3. That at the time Plaintiff became a member of Defendant Cooperative he was receiving, and continued until June 6, 1950, to receive from the Defendant, electric energy for domestic purposes.

'4. That the Defendant Cooperative proposes to construct a high voltage line from its sub-station in Curry County, New Mexico, through De Baca County, New Mexico to adequately serve the Town of Fort Sumner, New Mexico, and surrounding areas.

'5. That said line will have a capacity of 69000 KVA and will traverse more than four miles of lands owned by the Plaintiff.

'6. That the Defendant Cooperative demanded that the Plaintiff execute a grant of right of way across said lands for the purpose of constructing and maintaining said high voltage electric transmission line.

'7. That the Plaintiff refused to grant the right of way without compensation therefor.

'8. That the Defendant Cooperative by its Board of Trustees attempted to terminate the membership of the plaintiff, and did on June 6, 1950 disconnect its lines carrying electric energy to Plaintiff's premises and refused further service to the Plaintiff.

'9. That the expulsion from membership and termination of electric energy was to coerce this Plaintiff to grant a right of way across his lands for the construction of the high voltage line without paying compensation therefor.'

We have carefully examined the record and find that there is substantial evidence to support findings numbered one to eight, inclusive. We reach a different conclusion as to the Court's finding of fact No. 9, as we find no substantial evidence to support the same, therefore, it cannot be sustained by us.

On February 14, 1948, plaintiff voluntarily became a member of Cooperative and continued so up until June 6, 1950, when he was expelled as a member and his electric service was disconnected for his refusal to grant it a right-of-way for a high voltage transmission line over his property. He had theretofore complied with the rules, regulations and by-laws of Cooperative. Cooperative now serves nine hundred members in Fort Sumner and in the Pecos Valley and plans service for more than one hundred additional members in that county. It was stipulated that the present system, plant and generating facilities at Fort Sumner are inadequate and unreliable. In order to serve the De Baca County area properly, Cooperative proposed and set about procuring engineering, right-of-ways, and materials for a sixty-nine thousand volt line from Clovis to Fort Sumner. It was also stipulated that the building of the proposed line is necessary. A little over four miles of the proposed line traverses plaintiff's ranch. During the month of February, 1950, Cooperative began its survey for the new line. Mr. J. L. Coffey, County Commissioner of Curry County and a Mr. Gilbert contacted plaintiff relative to granting it a right-of-way for its transmission line over his ranch but plaintiff refused to grant the same unless he was paid for it. Several other attempts were made to have plaintiff grant said right-of-way, but without success. Thereafter, Cooperative took steps to expel plaintiff from membership pursuant to Section 7, Article 1, of its by-laws and the resolution passed pursuant thereto on July 26, 1947. Cooperative commenced its procedure by sending plaintiff a registered letter dated May 30, 1950 setting June 3, 1950 at 10 A.M. o'clock at Cooperative's office in Clovis, New Mexico, as the time and place to take final action on the question of termination of his membership. The plaintiff did not appear for the hearing. The Board of Trustees convened on the appointed date and adopted a motion to...