West Tex. Utilities Co. v. City of Baird

• Decision Date: 06 January 1956
• Docket Number: No. 3203,3203
• Parties: WEST TEXAS UTILITIES COMPANY, Appellant, v. The CITY OF BAIRD, Appellee.
• Court: Texas Court of Appeals

Page 185

286 S.W.2d 185

WEST TEXAS UTILITIES COMPANY, Appellant, v. The CITY OF BAIRD, Appellee.

No. 3203.

Court of Civil Appeals of Texas, Eastland.

Jan. 6, 1956.

Rehearing Denied Jan. 27, 1956.

Wagstaff, Harwell, Alvis & Pope, Abilene, Lyne, Blanchette & Smith, Dallas, for appellant.

Scarborough, Yates, Scarborough & Black, Abilene, Jackson & Jackson, Baird, for appellee.

COLLINGS, Justice.

This is an appeal from a judgment in favor of plaintiff, The City of Baird, texas, permanently enjoining the defendant, West Texas Utilities Company, and its representatives, from selling or offering for sale or furnishing electricity for lights or power to any person or persons, firms of corporations within the City of Baird after May 5, 1955, the date of the judgment. West Texas Utilities Company has appealed.

An opinion was heretofore entered in all things affirming the judgment of the trial court. After a consideration of appellant's motion for rehearing we have concluded that the original opinion should be, and it is hereby withdrawn and the following is substituted therefor.

Appellant, West Texas Utilities Company, acquired, in 1923, and thereafter held, until it expired, a franchise to construct, maintain and operate an electric light and power plant and distribution system in the City of Baird, Texas, with the right to erect, construct and maintain poles, posts, wires, transformers and other apparatus necessary therefor in, upon and across the streets, alleys and public grounds of the City, and with the right to furnish light and power during the term of the franchise to all public and private customers. This franchise, which was granted for a term of forty years, expired on March 19, 1955. Appellant has, since the expiration of the franchise, continued to operate and to serve some customers with electric lights and power in the City of Baird.

On or about March 1, 1955, appellant company began construction of an underground service within the City of Baird from a point on its lines on the T. & P. Railway Company's right of way, tunnelling under First Street to two of its customers, The Southwestern Bell Telephone Company's Repeater Station and the Callahan County Farmers' Cooperative Feed Mill. This operation was entirely underground and did not disturb the surface of any of the City's streets or alleys.

Appellant company contends that the court erred in holding that it has no right to operate its light and power business in the City of Baird because such holding prohibits a business which is lawful and authorized under the company's charter and the statutes of the State. Appellant urges that it has the right to furnish and sell electricity and power to its customers in the City when they are served through transmission lines which are all located on private property and no use is made of the City's streets, alleys or public grounds. In this connection, appellant points out that its electric transmission line from the West city limits to the East city limits of the City of Baird is entirely on property owned by the Texas and Pacific Railway Company over which it has, by condemnation proceedings, acquired a right of way easement; that it has also condemned rights of way for lines connecting at right angles with its main east and west line extending north across the railroad from the Railway Company and thence under First Street, from adjacent property owners, a depth of 7 1/2 feet, to connections with the Southwestern Bell Telephone Company's relay station and the Callahan County Farmers' Cooperative Feed Mill; that appellant company also has service connections on the outer limits of the City which it serves from nearby transmission lines which do not cross or encroach upon any of the City's streets or alleys.

Appellant, West Texas Utilities Company, is a public utility corporation and under its charter is authorized to furnish and sell electricity to the public generally. It is engaged in the business of selling and distributing electricity to the public for light, heat and power and in the operation of such business, is a public utility. Appellant operated its power and light business in the City of Baird for many years under a franchise from the City but that franchise expired on March 19, 1955.

The material issues presented for consideration are whether an electric utility company must have a franchise from a City to entitle it to engage in the business of furnishing and selling electricity to customers within the City (1) through distribution lines which reach the customers by tunnelling under a city street, or (2) by service connections on the outer limits of the city through transmission lines which do not cross or encroach upon any of the city's streets or alleys.

A franchise is defined as a special privilege conferred by the government on individuals which do not belong to the citizens of the country generally as a common right. State v. Austin & N. W. R. Co., 94 Tex. 530, 62 S.W. 1050. A franchise is a right or privilege granted to a corporation or individual to do things which such corporation or individual otherwise could not do, such as the construction, maintenance and operation of utility transmission lines either above or beneath the surface of the city's streets and alleys. Washington Water Power Co. v. Rooney, 3 Wash.2d 642, 101 P.2d 580, 127 A.L.R. 1044; 19 Tex.Jur. 876, 879; Vernon's Texas Constitution, Article 1, Section 17; G. C. Ry. Co. v. G. C. S. Ry. Co., 63 Tex. 529; 37 C.J.S., Franchises, § 2, p. 147; 23 Am.Jur. 715.

The legislative department of the government is the source of a grant of a franchise. It may exercise this authority by direct legislation or through agencise established with power for that purpose. By statutory authority, incorporated cities and towns in this state have exclusive control and power over their streets, alleys and public grounds. Article 1016, Vernon's Annotated Texas Civil Statutes.

'Any incorporated city or town containing not more than five thousand population in this State shall have the exclusive control and power over the streets, alleys, and public grounds and highways of the city, and to abate and remove encroachments or obstructions thereon; to open, alter, widen, extend, establish, regulate, grade, clean and otherwise improve said streets; to put drains or sewers therein, and prevent incumbering thereof in any manner, and to protect same from encroachment or injury'.

Also by statute, any corporation engaged in the distribution of electric energy in this state has the right to construct, maintain and operate its distribution lines over, under, across, upon and along any highway or road, except within the limits of incorporated cities and towns. Within incorporated cities and towns such corporations may construct, maintain and operate lines over, across and along streets and alleys with the consent and under the direction of the governing body of the municipality. Article 1436a, Vernon's Annotated Texas Civil Statutes.

There is no question about the rule...