Western Public Service Co. v. City of Minatare, 11212.

• Decision Date: 09 December 1938
• Docket Number: No. 11212.,11212.
• Citation: 99 F.2d 844
• Parties: WESTERN PUBLIC SERVICE CO. v. CITY OF MINATARE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

99 F.2d 844 (1938)

WESTERN PUBLIC SERVICE CO. v. CITY OF MINATARE et al.

No. 11212.

Circuit Court of Appeals, Eighth Circuit.

November 23, 1938.

Rehearing Denied December 9, 1938.

Daniel Stubbs, of Lincoln, Neb. (Clarence A. Davis and James N. Ackerman, both of Lincoln, Neb., on the brief), for appellant.

C. A. Sorensen, of Lincoln, Neb. (H. L. Kyle, of Lincoln, Neb., on the brief), for appellees.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

Appellant, a public utility corporation, engaged in the generation, transmission, and sale of electric energy, brought this suit in equity against appellees, the City of Minatare, a municipal corporation of Nebraska, the members of its City Council, and its clerk, seeking to enjoin appellees from constructing, maintaining or operating within the City of Minatare an electric light and power generating, transmission or distribution system, and from interfering with the quiet enjoyment of the property theretofore leased by the appellant from the City of Minatare, and from attaching to the lines of the city any of the customers of plaintiff within the city, or from doing any other act to interfere with the undisturbed possession of said leased property by the appellant. It will be convenient to refer to the parties as they appeared below.

Plaintiff, in its amended bill of complaint, alleged that its predecessor in interest had leased from the city its electric distribution system, and that its lease will not expire until approximately seven years from the date of commencing suit; that this lease was effected through the enactment of an ordinance, by the terms of which the city not only leased its distribution system to plaintiff's assignor and predecessor in interest, but granted a franchise for the operation of the leased system during the term of the lease; that in consideration of the lease and pursuant to its terms, it and its predecessor built a transmission line from Scottsbluff, Nebraska, to Minatare, at a substantial expense, and reduced the rates for furnishing electricity to the city; that it was operating the said distribution system in Minatare at a profit; that in January, 1937, the defendant city and its officers initiated proceedings which culminated in the election which authorized the city to construct, purchase, or otherwise acquire an electric light and power distribution system; that plans and specifications for such system were filed with the city clerk and notice given that bids would be received on December 7, 1937, for the construction called for by these plans; that the defendants threaten to construct a municipal electric distribution system; that they have solicited customers of the plaintiff to purchase such electric current as they may need during the period of five years, from the proposed municipal electric light and power system; that plaintiff has in said city 252 customers, and that the defendants have secured 186 of these customers to sign an agreement to abandon the service of plaintiff and to accept the service of the municipal plant; that the defendants, unless restrained, will immediately construct a distribution system and will "cut and detach the said described customers from the lines of the plaintiff and destroy that part of the distribution system leased by the said city to plaintiff in violation of the covenants and promises in said lease, and that as a result of said unlawful acts and conduct the value of the property so leased by the City of Minatare to the plaintiff will be so greatly impaired as to be rendered useless and valueless to the plaintiff;" that telephone lines as well as the leased distribution system now occupy the streets and alleys of the city, and defendants intend to build a duplicate distribution system in and along the same streets and alleys as those now occupied by said leased distribution system, and they intend to construct lines by overbuilding and underbuilding and crossing and recrossing said leased...