Coffeyville Mining & Gas Co. v. Citizens' Natural Gas & Mining Co., 55 Kan. 173

Coffeyville Mining & Gas Co. v. Citizens' Natural Gas & Mining Co.

55 Kan. 173 | Kan. | 1895

The opinion of the court was delivered by

Allen, J. :

puttee.011The plaintiffs went before the probate judge of Montgomery county, and without notice obtained a full temporary injunction against the defendant, restraining it from the commission of any of the acts complained of in the petition. A bond for $200' only was required. This injunction, although afterward dissolved by the district judge, has been kept in force in the manner provided by statute. It is apparent that notice of the application could have been given as both parties were located at the same place. The practice of obtaining temporary injunctions affecting materially the rights of parties litigant without giving any notice *178or any opportunity to be lieard is most reprehensible. Where it is necessary that a party should be restrained from an unlawful act, and there is occasion for immediate action, a temporary restraining order should be issued to operate only until such time as notice can be given and a fair opportunity" afforded the party complained of to be heard. There is no safety in attempting to administer justice when one side alone can be heard. Parties and their attorneys can never be relied on to present the case fairly and truthfully in all respects. It is especially improper for a probate judge to grant such orders without notice. Indeed, we think the most a probate judge should ever do is to afford such temporary relief as the circumstances of the case urgently demand, to continue only until the application can be heard before the judge of the district court in which the action is pending. We have thought it necessary in this manner to condemn the practice resorted to in this case, for which, however, counsel who now appear are not responsible, as they were not then employed in the caso.

*1792-streets. *178The only questions of law necessary to be considered arise on the demurrer to the petition. The main scope and purpose of the plaintiff’s action plainly is to prevent the defendant from laying mains and pipes in the streets of the city' of Ooffeyville for the purpose of supplying natural gas. In other words, it is to maintain a monopoly of its business. It seeks to test the validity of two city ordinances granting the defendant company the use of the streets, etc., and to restrain the defendant from using the privilege granted. For these purposes the plaintiff clearly has no standing in court. The city" authorities are'charged with the duty of preventing encroachments on the streets and public grounds. The proper public officers alone can test *179the validity of the ordinances under which the defendant claims. The city did not in terms attempt to give the plaintiff company a right to the exclusive use of the streets and alleys for the purpose of laying its pipes. If it had attempted to do so, it-could not for want .of power. A private person or corporation will not be recognized in a court of justice as the guardian of purely public interests, nor to further its private ends by assuming that character. (Craft v. Comm’rs of Jackson Co., 5 Kas. 518 ; Bobbett v. The State, ex rel., 10 id. 9 ; The State, ex rel., v. Marion Co., 21 id. 419 ; Nixon v. School District, 32 id. 510 ; Comm’rs of Barber Co. v. Smith, 48 id. 331.) It is apparent then that the plaintiff has no standing in court to litigate the principal questions it seeks to present. It can neither test the validity of the ordinances under which the defendant claims a right to act, nor could it, if no ordinances had been passed, try the right of the defendant to lay pipes in the streets for the purpose of supplying natural gas.

*180injunction, *179It only remains to be considered whether there are such averments in the petition as show a threatened interference with the private rights of the plaintiff. It is alleged that the defendant has, in divers places where it has crossed the mains of the plaintiff, destroyed and injured its pipes and mains, but it is not alleged that the defendant is preparing, threatening or about .to do any further injury to the plaintiff's property. The rule is well settled that on a demurrer the averments of the pleading demurred to are to be strictly construed against the pleader. Nothing is to be inferred. Under our system of practice, which is so liberal in the allowance of amendments, no harm can come from adherence to this rule. The only aver-*180ments in the petition with reference to any contemplated injury to its rights are that the defendant claims that it has the exclusive privilege to use the streets, etc., to the exclusion of the plaintiff; and that the plaintiff ‘ ‘ fears and believes ’ ’ that the defendant ' ‘ will tear up and destroy and ruin the service and injure the business of said plaintiff, and will dig up and cross and go over the mains of the plaintiff; ’ ’ and that “said plaintiff will be subjected to numerous suits for failing to render to its many patrons the service which it has contracted to perform.” Undoubtedly, the plaintiff may obtain an injunction when necessary to restrain the defendant from injuring its mains or pipes or other properties so as to interfere with the conduct of its business ; but, before the defendant can be subjected to the expense and vexation of a lawsuit, it must be shown that it is threatening or preparing to perpetrate some wrong. Injunctions cannot be obtained on the visionary basis of fears or beliefs. It is only actual unlawful purposes made evident by acts or declarations that furnish a valid foundation for the interposition of the strong arm of the law by injunction. (Jones v. Railroad Co., 39 Ga. 138; Portland v. Baker, 8 Ore. 356; Holdrege v. Gwynne, 18 N. J. Eq. 26; Turnpike Co. v. Board of Supervisors, 13 Cal. 190; McHenry v. Jewett, 90 N. Y. 58; High, Inj., §34.) No act or declaration of the defendant is shown indicating a purpose to injure plaintiff's property. It is not even contended in argument that any real injury to the plaintiff’s pipes had been done or was threatened. On the contrary, affidavits contained in the case-made (which, however, are of course not to be considered on this demurrer as affecting our decision) show that the defendant has not injured the plaintiff’s pipes or *181mains at all. We mention this only because it seems evident that the main and really the only substantial purpose of the plaintiff in this case is to prevent the defendant from competing with it in supplying gas to the people of Coffeyville, and that no wrong will be done by a strict construction of the language employed in the petition. As to the allegation of a claim of exclusive right, courts do not interfere by injunction to restrain unfounded claims. (Gas Co. v. Gas Light, etc., Co., 100 Mo. 501; 18 Am. St. Rep. 563.)

It is said in the petition that the city council by the ordinances under which the defendant claims, attempted to repeal ordinance No. 241, granting the plaintiff its privileges. Copies of the ordinances are attached to the petition. We fail to find any language in either ordinance indicating any purpose of the city council to repeal ordinance No. 241. In ordinance 283, §7 reads: “All ordinances or parts of ordinance in conflict with this are hereby repealed.” As ordinances Nos. 275 and 283 both relate to the privileges granted the defendant company, we think it evident that the council had reference only to ordinance No. 275 in the section quoted. The rights of the plaintiff under ordinance No. 241 were not taken away by the subsequent ordinance, but a concurrent riglit to the use of the streets, etc., was thereby given to the defendant.

The ruling of the district court in dissolving the temporary injunction and sustaining the demurrer •was right, and the judgment is affirmed.

All the Justices concurring.