Citations
- 5 F. Supp. 822
Full opinion text
FRANKLIN E. KENNAMER, District Judge.
Plaintiff’s petition contains three causes of action. The first is to recover 4 per cent, of the gross revenue derived by defendant from its business at Tulsa from January 5, 1923, to June 1, 1932, under certain provisions of the city charter hereafter mentioned; the second is to eject defendant from the streets and alleys of the city; and the third is to recover damages for defendant’s alleged unlawful use of the streets and alleys of plaintiff from January 5, 1923, to June 1, 1932.
At the close of all the evidence, defendant has moved for a directed verdict.
The town of Tulsa, Indian Territory, was incorporated January 18, 1898. The town-site was surveyed and platted December 11, 1901, and the plat approved by the Secretary of the Interior April 11,1902. Some time prior to January 5, 1903, one Hall had constructed a telephone system in Tulsa, but his service to the public seems to have been unsatisfactory. The Indian Territory Telephone Company made several unsuccessful attempts to purchase Hall’s business. The town officers, believing the Indian Territory Telephone Company would render more efficient service, were desirous of having that company in Tulsa. They conceived the idea that if an ordinance was adopted granting the company the right to do business in Tulsa, Hall’s willingness to sell his business might be affected. Consequently, on January 5,1903, the town of Tulsa adopted Ordinance No. 36, purporting to grant to the Indian Territory Telephone Company, for a term of twenty years, a franchise to conduct a telephone business in Tulsa, and to use the streets and alleys for that purpose. The Indian Territory Telephone Company did not construct a system under that franchise, but shortly after its granting, purchased Hall’s business and equipment.
On July 28, 1993, the town of Tulsa was made a city of the second class by court order signed by Judge C. W. Raymond.
The Indian Territory Telephone Company filed with the Secretary of the Interior a plat showing the location of its telephone system in Tulsa, and on June 8, 1907, the plat was approved by the Secretary of the Interior, by writing across it: “Approved: Subject to the provisions of the Act of March 3, 1991 (31 Stat. 1083), Departmental regulations of March 26, 1901, and the amendment of March 15, 1907, thereto, and subject also to any prior, valid existing rights and adverse claims.”
The defendant has, since statehood, succeeded to all the rights of the Indian Territory Telephone Company.
After Oklahoma was admitted to the Union, and on July 3, 1908, the city of Tulsa adopted a special charter, which was approved by the Governor of OHahoma on January 5, 1909.
The plaintiff concedes the right of defendant to nse the streets and alleys from January 5, 1903, to January 5, 1923, the period covered by Ordinance 36, before mentioned. Section 1 of article VII of the Charter of Tulsa prohibits the use of streets and alleys for the construction or operation of a telegraph line, telephone system, or any other business of a public or quasi public na