Laighton v. City of Carthage, Mo.

• Decision Date: 10 December 1909
• Citation: 175 F. 145
• Parties: LAIGHTON v. CITY OF CARTHAGE, MO.
• Court: U.S. District Court — Western District of Missouri

175 F. 145

LAIGHTON v. CITY OF CARTHAGE, MO.

United States Circuit Court, W.D. Missouri, Western Division.

December 10, 1909

[Copyrighted Material Omitted]

This is a bill in equity to enjoin the defendant city from in any wise interfering with, or preventing the complainant from removing, the water plant, machinery, water mains, pipes, and hydrants from the streets of the city, etc. The application for preliminary injunction has been duly heard and submitted. The controversy substantially grows out of the following state of facts:

In 1885 the defendant, a city of the third class under the statute of Missouri, granted to one Star the right and privilege to construct and maintain pumping machinery and necessary equipments for supplying the defendant with water for flushing its sewers, streets, and alleys, and to establish and maintain therein hydrants, mains, and pipes for supplying city buildings and institutions with water, and also the citizens thereof for domestic purposes. By mesne conveyances and transfers this grant and right passed to the Carthage Water & Power Company. The grantee proceeded to establish such plant and water system at an outlay of between $100,000 and $200,000, and to furnish water under such contractual obligation.

The franchise by its terms expired about 1905. It contained no provision entitling the grantee to renewal or extension of the right, and contained no provision requiring the city to purchase the plant and water system at the expiration of the charter. Neither was there any provision in the grant which prohibited the city from constructing its own water plant or system and operating the same contemporaneously with that of the grantee.

When the limitation period of the grant expired, the water company continued to operate its plant and to furnish the city with water as theretofore. A controversy arose between the city and the water company respecting the refusal of the city to pay its arrears for hydrant rentals; the city asserting certain defaults on the part of the company as to the quantity and quality of the water furnished. The city continuing and persisting in such default, as claimed by the water company, the latter gave notice of a purpose to shut off the supply of water to the city unless said dues in arrear were paid. Thereupon the city instituted proceedings in the circuit court of Jasper county, Mo., to restrain the water company from carrying into execution its threatened discontinuance of water supply for city purposes. Temporary injunction was granted, accordingly, conditionally. The court on final hearing, after finding that the city was indebted to the water company in a large sum of money for hydrant rentals, found that:

'The sum of $4,842.72 which was collected from the taxpayers of the city of Carthage on the special tax levy for the purpose of paying for hydrant rentals and street sprinkling, and that the sum of $7,000 belonging to the said water fund, collected in the same way and for the same purpose, has been by the council of the city transferred and diverted from the said fund to the general revenue fund of said city, and should be returned to said water fund from said general revenue fund at the earliest possible date. * * *

'The court further finds from the evidence that the plaintiff is indebted to the defendant for water furnished by the defendant to the plaintiff for sprinkling the streets of the city of Carthage at the rate of $20 per month commencing May 19, 1909, and the plaintiff is to pay defendant for such sprinkling from said date at the rate aforesaid.

'It is therefore ordered, adjudged, and decreed by the court that the temporary injunction heretofore granted in this case be continued in force until August 20, 1909. And it is further considered and ordered that if upon that date it appears to the court that the plaintiff has paid to the defendant the sum of $4,842.72, to be applied as may hereafter be ordered by the court, then the sum of $1,513 now in the hands of the clerk of this court will be ordered by this court to be paid over to the defendant for hydrant rentals from May 19, 1909, and thereupon the temporary injunction heretofore issued in this case will be continued in force until the November term, 1909, of this court, at which time, on the payment to the defendant by the plaintiff of said sum, the court will make such other and further orders as to the continuance of the temporary injunction in force from time to time thereafter as the circumstances require, and the efforts of plaintiff city in good faith to restore to the water fund of said city the sums transferred therefrom to the general revenue fund may demand as justice and good conscience requires, which sums when so restored to said water fund are to be paid to the defendant on the indebtedness heretofore found; otherwise, plaintiff's bill at that time will be dismissed, and the temporary injunction dissolved.

'It is further ordered, decreed, and adjudged that unless the plaintiff on or before the 20th day of August, 1909, pay to the defendant, or the clerk of this court for the defendant, the said sum of $4,842.72, then on said 20th day of August, 1909, the plaintiff's bill herein will be dismissed.'

Afterwards on the 20th day of August, 1909, the court made a further order reciting that the plaintiff city had complied with the order of the court of the 31st day of July, 1909, and that it did on the 10th day of August, 1909, pay to the defendant the said sum of $4,842.72. The clerk of the court was ordered to pay over to the defendant the sum of $1,513 theretofore deposited with the clerk for the use of the defendant; said sum to be in payment of hydrant rentals from May 19, 1909, to November 19, 1909. It was thereupon ordered that the temporary injunction heretofore issued in the case be modified and amended so as to require defendant to maintain suitable telephone arrangements so as to be notified in case of fire, to furnish the best pressure of which its pumps are capable, and to maintain such pressure during the time the fire department of the city shall be using water to extinguish fires. 'And it is further ordered that the temporary injunction, as so modified and amended, should continue in force until the November term, 1909, of this court, and until further ordered by the court.'

The said waterworks company's plant having been long prior to the proceedings aforesaid mortgaged to secure its bonds, and default having been made to keep the conditions of said mortgage, on the 14th day of October, 1909, at a meeting of the stockholders and directors of said company, it was resolved that, the company being in default as aforesaid, and in fact insolvent, to save the expense and delay of foreclosure proceedings under the mortgage, the property be conveyed to the complainant in trust for the use and benefit of the mortgagee; which was done, and possession of the property was turned over to him. He thereupon gave written notice to the city of Carthage that he would discontinue operating the plant, shut off the pumps, and move the same. Whereupon the city in the said suit in the state court brought what it terms a 'supplemental bill' against the said purchaser, complainant herein, who was a nonresident of the state, and not found therein, seeking to enjoin him from carrying into execution said purpose. On notice to an employe of the water plant, the court granted a temporary restraining order enjoining the complainant herein. On his application the cause was removed into this court. Whereupon the defendant herein moved to remand the cause to the state circuit court, which motion was denied. Thereupon the city asked leave to dismiss the proceedings as against this complainant, which was granted. The temporary injunction against him ordered by the state court was dissolved, and the cause of the city of Carthage against the said water company was remanded to the state court. Thereupon the present bill in equity was presented, which charges that the city, knowing the purpose of the complainant to discontinue operating and remove said plant, threatens to interfere with, impede, and prevent the said action, threatening to bring sundry and divers actions at law and in equity to prevent him from obtaining lawful possession of his property and removing the same from the streets of the city, etc., and praying for an injunction to prevent the threatened acts.

C. F. Mead and Willard P. Hall, for complainant.

J. D. Perkins, for defendant.

PHILIPS, District Judge (after stating the facts as above).

When the franchise contract between the water company and the city expired by limitation, the right of the company to operate its plant and use the streets of the city therefor ceased and with it the right of the city to demand the service. The relation between them was contractual, so that when the contract ended either was at liberty to go...