Error
to district court, Arapahoe county.
Petition
by L. H. Wood, Frank M. Hosford, G. A. Breon, J. E. Bussy
Theodore H. Thomas, A. H. Warren, J. E. Breon E. A. Kent, S
S. Kennedy, and F. L. McFarland to intervene in an action by
the Denver City Waterworks Company against the Citizens'
Water Company for an injunction restraining the latter from
interfering with its exclusive franchise. A temporary
injunction had issued, for violation of which the defendant
company had been held guilty of contempt of court, whereupon
the above-named petitioning citizens asserted their right to
become parties, for the purpose of contesting plaintiff's
claim to an exclusive franchise. On an order denying leave to
file their petition, they bring error. Reversed.
The
complaint on which the injunction was applied for (omitting
formal parts) was as follows: 'That both plaintiff and
defendant are corporations organized and existing under the
laws of the state of Colorado, for the purpose of supplying
the city of Denver, and towns adjacent thereto, and the
inhabitants thereof, with water for fire, domestic, and other
purposes. That heretofore, and on, to wit, the 13th day of
January, A. D. 1888, the town of Highlands, by its
duly-authorized and acting authorities, entered into a
certain contract with the Beaver Brook Water Company, the
predecessor of the plaintiff herein, as will hereinafter more
fully appear, and in and by which said contract it was
provided, among other things, as follows, to wit: 'That
for and in consideration of the agreements and covenants
hereinafter mentioned, to be kept, done, and performed by the
party of the second part, the party of the first part doth
hereby grant unto the party of the second part the sole and
exclusive right to construct and erect waterworks, and lay
all necessary pipes, mains, and conduits under and along the
streets, alleyways, bridges, and avenues within the corporate
limits of the said town of Highlands, for the purpose of
supplying the said town and the inhabitants thereof with
water for fire, domestic, and other purposes, for the full
period of twenty years, from the twenty-fourth day of
December, A. D. 1886.' That thereafter, and on, to wit
the first Tuesday in April, A. D. 1888, the question of the
ratifying of the said contract so made between the town of
Highlands, by its board of trustees, and the said the Beaver
Brook Water Company, was duly submitted to the qualified
voters of said town of Highlands, and a majority of the
voters of said town, voting upon said question at said
general election, duly voted to approve the same; and that
the said contract has since said date been in full force and
effect, and is so in full force and effect at the present
time. That thereafter, and on or about the 3d day of
February, A. D. 1891, the said the Beaver Brook Water Company
duly sold, assigned, transferred, and set over unto the
plaintiff herein all of its property, both real and personal
together with all rights, privileges, and franchises
including the said contract, with the said town of Highlands
hereinbefore referred to; and that the said sale, assignment
and transfer of the said property to the plaintiff, so far as
the same pertained to the said contract between the said town
of Highlands and the said the Beaver Brook Water Company, was
thereafter, and on, to wit, the said 3d day of February, A.
D. 1891, duly ratified and approved at a regular meeting of
the board of trustees of the said town of Highlands, by an
ordinance duly ratifying and confirming the said sale and
transfer upon certain conditions in said ordinance contained;
and that, since the said sale, assignment and transfer to the
plaintiff herein, the plaintiff hath in all matters and
things fully complied with the terms and conditions of the
said contract; and that the same is at the present time in
full force and effect. That heretofore, and on, to wit, the
4th day of March, A. D. 1890, the board of trustees of the
said town of Highlands, by a certain ordinance passed on that
date, authorized and permitted the defendant herein, the
Citizens' Water Company, to construct a certain line of
pipe through the said town of Highlands, upon two certain
streets of said town, known as 'Ashland Avenue' and
the 'Boulevard.' That the said streets, through which
the said line of pipe was so authorized to be constructed by
the said the Citizens' Water Company, are two of the most
populous and thickly-inhabited streets of said town, and a
large portion of the business houses and residences of said
town being upon said line of pipe and water main; but
plaintiff further alleges that it was provided in and by the
said ordinance so granting such privilege to the said the
Citizens' Water Company as follows (section 4):
'Nothing in this ordinance shall be construed as
permitting the said the Citizens' Water Company to
furnish any water to any of the inhabitants of the town of
Highlands, or in any manner interfere with the rights and
privileges of the Beaver Brook Water Company, or with its
contract between the town of Highlands and the Beaver Brook
Water Company, or with any drain, water, or other pipe now
laid in any of the streets of said town.' And plaintiff
alleges that the said line of pipe and water main of the
Citizens' Water Company was so laid down and constructed
under the authority and permission granted in and by the said
ordinance, and not otherwise; and that the said line of water
main and pipe is at the present time so laid down and
constructed. Plaintiff further alleges that heretofore, and
on, to wit, the ___ day of _____, A. D. 1891, the plaintiff
commenced its certain action herein for a writ of injunction
against the board of trustees and the mayor of the town of
Highlands, praying for a writ of injunction enjoining and
restraining the said authorities of the said town of
Highlands from entering into any contract or agreement
whatsoever with the said the Citizens' Water Company for
supplying the said town, or the citizens thereof, or any part
or portion thereof, with water for any purpose whatsoever, by
resolution, ordinance, or in any way or manner authorizing,
permitting, or consenting to the said the Citizens' Water
Company furnishing or supplying water to the said town, or to
the inhabitants thereof, or to any part or portion thereof
until the further order of the court in the premises; and
that upon said date this honorable court, by its order to
that effect, duly ordered the issuance of a temporary writ of
injunction and restraining order, as prayed in said bill of
complaint; and that the same was duly served upon the said
parties designated therein as defendants. That thereafter a
motion in said cause was duly made by the defendants therein
to dissolve the said temporary writ of injunction and
restraining order, which said motion, coming on duly to be
heard in this honorable court, was, after a full hearing
thereof, and argument of counsel thereon, and due
deliberation by the court thereon, overruled and denied, and
the said injunction so issued by this honorable court is at
the present time in full force and effect and virtue. That
notwithstanding that, in and by the said action of this
honorable court, the said town and the authorities thereof
are absolutely enjoined from authorizing or permitting the
said the Citizens' Water Company to supply any of the
inhabitants or citizens of the said town with water for any
purpose whatsoever, and that notwithstanding the fact that
the said the Citizens' Water Company, in and by the
permission granted to it to lay down and construct said line
of water main, contracted and agreed that it would not in any
way or manner interfere with the rights of the plaintiff and
of the Beaver Brook Water Company to supply the said town and
its inhabitants with water, and that it was not permitted by
said ordinance to furnish any water to any of the inhabitants
of the said town of Highlands, yet, nevertheless, plaintiff
alleges the truth to be that the said the Citizens' Water
Company, as well as the authorities of said town, are
attempting to evade the force and effect of the writ of
injunction so issued herein, and to that end the said
defendants in said cause, through the advice and procurement
of the said the Citizens' Water Company, as plaintiff is
informed and believes, on, to wit, the 13th day of April A.
D. 1891, at a meeting of the said board of trustees of said
town of Highlands, duly adopted the following resolution, to
wit: 'Resolved, that a permit be, and is hereby, given
and granted to the residents and property owners along the
line of the Citizens' Water Company, on the Boulevard and
Ashland avenue, to dig trenches in and through the said
Boulevard and Ashland avenue for the purpose of discovering
the water mains of the said Citizens' Water Company;
provided, the said residents enter into a good and sufficient
bond, indemnifying the town for any accidents that may be
occasioned thereby.' And plaintiff alleges the truth to
be that one of the grounds upon which plaintiff's
original application for an injunction against the said town
of Highlands was granted, and one of the reasons assigned by
this honorable court in overruling the said motion to
dissolve the said injunction as to why the said injunction
should be maintained, was that it is not proposed by the said
the Citizens' Water Company to supply all of the
inhabitants of the said town with water, but only such
portions thereof as have their residences and places of
business immediately adjacent to the said line of water mains
so already constructed by them, and that the same, if it was
permitted to be done, would result in...
