Peoples Gas System, Inc. v. City Gas Co., 62-485

• Decision Date: 11 December 1962
• Docket Number: No. 62-485,62-485
• Parties: PEOPLES GAS SYSTEM, INC., a Florida, corporation, Appellant, v. CITY GAS COMPANY, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 334

147 So.2d 334

PEOPLES GAS SYSTEM, INC., a Florida, corporation, Appellant, v. CITY GAS COMPANY, a Florida corporation, Appellee.

No. 62-485.

District Court of Appeal of Florida, Third District.

Dec. 11, 1962.

Rehearing Denied Jan. 3, 1963.

Scott, McCarthy, Preston & Steel and George W. Wright, Jr., Miami, Mabry Reaves, Carlton, Fields & Ward and Joseph A. McClain, Jr., Tampa, for appellant.

Ward & Ward, Dubbin, Schiff, Berkman & Dubbin, Miami, for appellee.

Before HORTON, CARROLL and HENDRY, JJ.

HORTON, Judge.

Appellant, plaintiff below, seeks review of and adverse final decree dismissing its amended complaint for injunctive relief and specific performance of a territorial service area agreement. We reverse.

On September 9, 1960, appellant, Peoples Gas System, Inc., and appellee, City Gas Company, competing gas companies, in order to avoid costly duplication of services and facilities, entered into a territorial service area agreement purporting to define their respective service areas in Dade and Broward Counties. Paragraph two of the agreement states, inter alia:

'We agree to acknowledge and respect boundaries between our respective natural gas service areas as shown on the Map hereto attached, * * *. For more detailed references our Service Area and also your Service Area are described in detail on the reverse side of the attached Map; however, the boundaries shown on the Map and as further described shall remain the same despite any change in name or number or any relocation of any highway, canal, or other description used to delineate such boundaries.' [Emphasis supplied]

The description on the back of the map referred to in the agreement, insofar as it pertains to the case sub judice, contains the following:

'The boundaries of the Service Area of City Gas Company of Florida agreed upon in the foregoing agreement and shown on the reverse side hereof are as follows * * *

'The Service Area of Peoples Gas System, Inc., in Broward County, agreed upon in the foregoing agreement and shown on the reverse side hereof is as follows:

'All of the area in Broward County situated East and North of the above described boundary, or dividing line, including that area North of the line along Pembroke Road extended to the Western boundary of Broward County.' [Emphasis supplied]

The map itself contains a clearly drawn and designated 'BOUNDARY LINE' running from west to east along Pembroke Road to State Road #9. The last discernible street at the top edge of the map is Thomas Street which runs east and west in Hollywood, Florida. The acknowledgment on the back of the map states:

'IT IS HEREBY ACKNOWLEDGED * * * that the map shown on the reverse hereof is the map referred to in, and made a part thereof by reference, that certain Agreement made and entered into by the two corporations * * *, for the purpose of creating and establishing a boundary line between the service areas in Dade and Broward counties. * * *' [Emphasis supplied]

Neither the map nor the agreement in any way purports to limit the use of the description contained on the back of the map or to limit the 'service areas' to those shown on the face of the map.

On May 7, 1962, the appellant filed a bill for injunction and specific performance claiming alleged violations of the agreement. The alleged violations consist mainly of the construction of underground gas installations in the cities of Pompano Beach and Margate, a territory some twenty miles north of Pembroke Road and fifteen miles north of Thomas Street, claimed to be with in the appellant's service area under the terms of the agreement. The appellee answered generally denying the material allegations and affirmatively alleging that its activities in Pompano Beach and Margate were the result of appellee's recent purchase of franchises held by third parties at the time of the execution of the agreement, and that the agreement did not and was not intended to include the Pompano Beach and Margate areas.

After some...