State v. Butte Electric & Power Co.

• Decision Date: 27 March 1911
• Citation: 115 P. 44,43 Mont. 118
• Parties: STATE ex rel. DEENEY v. BUTTE ELECTRIC & POWER CO.
• Court: Montana Supreme Court

115 P. 44

43 Mont. 118

STATE ex rel. DEENEY v. BUTTE ELECTRIC & POWER CO.

Supreme Court of Montana

March 27, 1911

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Mandamus by the State, on the relation of William Deeney, against the Butte Electric & Power Company. Judgment for relator, and respondent appeals. Affirmed.

Breen & Jones, for appellant.

Maury & Templeman and J. O. Davies, for respondent.

BRANTLY C.J.

The purpose of this application was to compel the defendant to furnish to the relator electricity to light his residence in the city of Butte. In his affidavit the relator alleges that he is a resident of that city, and defendant is a corporation organized and existing under the laws of the state of New Jersey, and authorized to do business in the state of Montana; that it is and has been engaged in furnishing electricity to the city of Butte and its inhabitants under a franchise granted to its predecessor in interest by ordinance duly enacted by the city council on July 27, 1883; that under the provisions of the ordinance, it has the right to extend its lines of wire along the streets and alleys of the city, and is required to furnish electricity to the city and its inhabitants for lighting purposes whenever demand is made for it and upon reasonable terms; that the house in which the relator resides is fitted with wires to receive electricity for domestic use; that the defendant has a power line along an alley through the block in which the relator's house is situated, by means of which it for a long time has been delivering electricity to the persons residing in the block that heretofore and until October 19, 1910, the wires in relator's house were connected with the defendant's line, and electricity was delivered to him for lighting purposes; that relator paid all bills due to the defendant for its service and complied with all of its reasonable rules regarding the use of electricity; that on the date mentioned the defendant wrongfully caused the connection between its line and relator's house to be severed, and unlawfully refused to furnish the relator with electricity; that, though demand was made for the restoration of the connection and service, it was refused, and that the relator has been damaged by being compelled to resort to other inferior means of lighting his house, to the amount of $1,000, and to pay counsel fees and costs to the amount of $560.20. Judgment is demanded that a peremptory writ issue requiring defendant to furnish the relator with electricity, and awarding him such sum in the way of damages as will compensate him for the injury and loss suffered.

The defendant's answer admits all the material allegations in the affidavit, except as to the damages. These latter it denies. As a justification for its action and as cause why relator is not entitled to relief, it alleges the following "That for more than one year last past, and next before the 19th day of October, 1910, this defendant has been a public service corporation, and at all times engaged in furnishing and supplying to the citizens of and residents within the city of Butte in Silver Bow county, Mont., under lawful permission so to do, by means of pipes, gas for fuel and other domestic purposes and lighting purposes. That for the period, full and entire, of 12 months next preceding the 19th day of October, 1910, the said William E. Deeney used for fuel purposes in his said residence gas of this defendant by means of a secret and furtive and clandestine connection with the mains and pipes of this defendant. That this defendant had no notice or knowledge of the said use by the said W. E. Deeney of its gas. That the said W. E. Deeney was during the said period of 12 months next preceding October 19, 1910, continually guilty of larceny of this defendant's gas, and using the same for fuel purposes. That the reasonable value and price of the said gas so used by the said W. E. Deeney in his said residence is more than the sum of $50. That no part of the said sum of $50 has ever been paid by the said W. E. Deeney, or by any one in his behalf, to this defendant for its said gas so used by him. That demand has been made on the said Deeney before the institution of this special proceeding of a civil nature by him that he pay the reasonable value and price of the said gas so furtively used by him, and the property of and made by this defendant. That he refused to pay, and failed to pay, anything at all for the use of the same. That when he was so using the gas of this defendant he intended never to pay for any of the same, and intended to continue to use the same clandestinely and without paying for the same. That this defendant has had for the period of more than one year continuously a rule that it will not serve electricity to any one who steals its gas, and that it will not sell gas to any one who steals its electricity until all reasonable bills and charges for both gas and electricity are paid to the company, this defendant. That such rule is a reasonable rule and regulation, as this defendant avers, and without this rule persons of the disposition to do so get, and there are some in Butte who would obtain, the products of gas and electricity furnished to the public by this defendant without being required to pay or paying...