West Texas Utilities Co. v. City of Spur (38 F.2d 466, 1930)

WALKER, Circuit Judge.

On the 25th day of October, 1928, the city of Spur, a Texas municipal corporation, which we shall call the city, by its board of commissioners, adopted an ordinance which provided “that it shall be unlawful for any firm, corporation, or persons, to conduct and to operate any public utility plant, such as telephone, gas, waterworks, electrie light, or any other utility plant, without a franchise from the City of Spur, Texas, duly passed by the Board of Commissioners of the City of Spur, Texas.”

That ordinance prescribed penalties for violations of it. On and prior to that date appellant owned and operated an electrie light plant in the city, using streets and alleys of the city for its poles and wires. Pri- or to that date the city had entered into a contract with Fairbanks Morse & Co., for the erection of an electric light plant, to be owned by the city and used for furnishing light to the city and to its inhabitants. On the 31st day of October, 1928, the appellant filed the original hill in this cause against the appellees, the city, its governing officials, and Fairbanks Morse & Co. The averments of that bill showed that appellant has no franchise from the city passed by its board of commissioners, but that it claimed that it had a franchise entitling it to operate the public utility which it was engaged in operating. The right to such a franchise was claimed on the ground that appellant succeeded to the rights reserved by the former owner of the land comprising the city, a town site corporation which caused that land to be surveyed and platted into blocks, lots, streets, and alleys for the purpose of creating a new town, and dedicated the land shown in the plat as streets and alleys by an instrument which by its terms reserved to the grantor or its assigns “the 'right to construct, erect and maintain telephone and electric light poles in and upon, across and over any and all streets in the town of Spur, with the right to make all necessary excavations, dig all necessary holes and do all things necessary to construct, maintain, operate and re