SIERRA ELECTRIC Coop. v. TOWN OF HOT SPRINGS

• Decision Date: 22 April 1947
• Docket Number: No. 4933,4933
• Citation: 180 P.2d 244,51 N.M. 150
• Parties: SIERRA ELECTRIC COOPERATIVE, Inc. v. TOWN OF HOT SPRINGS.
• Court: New Mexico Supreme Court

51 N.M. 150

180 P.2d 244

SIERRA ELECTRIC COOPERATIVE, Inc.

v.TOWN OF HOT SPRINGS.

No. 4933.

Supreme Court of New Mexico.

April 22, 1947.

[180 P.2d 244, 51 N.M. 151]

Douglass K. FitzHugh, of Hot Springs, for appellant.

Nils T. Kjellstrom, of Hot Springs, for appellee.

SADLER, Justice.

The plaintiff below appears before us as appellant complaining of the action of the trial court in dismissing its complaint seeking permanently to enjoin the defendant, Town of Hot Springs, a municipal corporation, from the purchase and acquisition of electric transmission and distribution lines through and across territory outside the corporate boundaries of said municipal corporation. The plaintiff alleged itself to be a cooperative regularly organized on September 11, 1941, under the Rural Electric Cooperative Act with its principal office and place of business in Hillsboro, Sierra County, New Mexico. The complaint then went on to allege: '* * * that by virtue of the provisions of said Rural Electric Cooperative Act, plaintiff has now, andsince the date of the granting of its charter, aforesaid, has had, the right, privilege, authority and power to construct, maintain and operate electric transmission and distribution lines along, upon, under and across all public thoroughfares, including without limitation all roads, highways, streets, alleys and bridges and upon, under and across all publicly-owned lands throughout Sierra County, New Mexico; that the rights, privileges, franchises and authority aforesaid is necessary to said cooperative to enable it to serve and fulfill its pledges to members of said Cooperative, plaintiff herein, situate throughout said Sierra County; that plaintiff has pledges of service outstanding and existing throughout all parts of said Sierra County outside of the corporate limits of said municipal corporation. Town of Hot Springs, New Mexico, defendant herein, and has had such pledges during all the times and on all the dates hereinafter set forth;' Then follow allegations that the defendant municipality was negotiating for the acquisition of certain electric transmission and distribution lines in territory outside its corporate limits in which area the plaintiff was alleged to hold previously acquired rights and franchises and that defendant planned to construct and maintain such lines in said territory in violation of the privileges, franchises and pledges of the plaintiff in said territory.

An order to show cause was issued and served on the defendant to which the latter filed its return as well as a formal answer to the complaint of the plaintiff. Briefly, the defendant admitted that negotiations were under way for the purchase by it of the transmission and distribution system of New Mexico Public Service Company within the corporate limits and outside the present corporate boundaries of the Town of Hot Springs, but that it had not yet accquired said properties nor was they any certainty that it ever would. The answer also carried an objection that New Mexico Public Service Company was not made a party defendant, as the owner of the transmission lines involved and then set up the claim that defendant, Town of Hot Springs, was improperly and prematurely joined as a defendant, having no interest in such property at the time.

The issues being thus made up, the matter came on for hearing, whereupon the court entered an order reading as follows: 'This cause coming on this day to be heard, and on the call of this cause for trial the Court asked the Attorney for the Plaintiff whether it had constructed its lines and was ready to give service to the customers of the New Mexico Public Service Company, who thereupon stated that the contract for the construction of the lines had not been let, but when constructed, the plaintiff expected to enter the field outside the corporate limits of Hot Springs and immediately adjacent to the boundaries thereof, and it being agreed the defendant had not completedthe purchase of the light plant, and the Court being of the opinion that under such state of facts the action is prematurely...