360 P.2d 1041 | Nev. | 1961
By the Court,
Respondent agrees with appellant’s statement of the legal issue presented to this court, adding only the last phrase as italicized to appellant’s statement of the issue. It is as follows:
“May the Appellant, Las Vegas Valley Water District, supply water service in an area where Respondent may and does already supply water service under a certificate of public convenience and necessity issued by the Nevada Public Service Commission without the payment of just compensation to Respondent?”
Likewise, in pre-trial proceedings, it was ordered, pursuant to stipulation, as follows: “That the questions of law shall be to determine whether or not the plaintiff may invade the territory so held by franchise by the defendant, or whether it can only invade the territory through the [exercise] of right of eminent domain.”
In the same pre-trial proceedings the court ordered that the Public Service Commission of the State of Nevada might intervene and that its filing of points and authorities would be tantamount to filing a petition in intervention and an order granting intervention. A copy of such order was served upon the Public Service Commission. The commission did not take advantage of the court’s order.
We refer to appellant as the Water District and to the respondent as Michelas. The proceedings were initiated in the court below by the complaint of the Water
As a first counterclaim he alleged that he had expended in excess of $300,000 in the acquisition of pumps, wells, real property, machinery, and other equipment “for the purpose of serving water users in his exclusive territory” ; that the Water District had, with full knowledge of plaintiff’s grant from the Public Service Commission knowingly, willfully, and deliberately, without first “seeking the utilization of the rights” conferred by the Act of 1947, entered upon Blocks 15 and 16 of the said Meadows Addition (for the servicing of which blocks he had obtained a certificate of convenience and necessity from the Public Service Commission), and unlawfully installed water mains and service connections within the area being then serviced by Michelas; that by reason thereof defendant had been damaged in the sum of $28,800, “the value of the loss of profits directly resulting by reason of plaintiff’s illegal acts”; that plaintiff’s acts were malicious and in gross and wanton disregard of defendant’s rights and privileges, by reason whereof defendant demanded exemplary damages in the sum of $50,000.
As a second counterclaim, Michelas likewise asserted that a controversy existed between the parties; that Michelas had been granted by the commission “the exclusive right” to furnish water in the disputed area; that the Water District had no right to service such disputed area other than under the Act of 1947; that it had
Michelas’ references to the failure of the Water District to act within the provisions of the Act of 1947 had reference to paragraph 7 of section 1 of said act, reading as follows:
“7. To have and exercise in the State of Nevada the right of eminent domain, either within or without said district, and in the manner provided by law for the condemnation of private property for public use, to take any property necessary to carry out any of the objects or purposes of this act, whether such property be already devoted to the same use by any district or other public corporation or agency or otherwise, and to condemn any existing works or improvements in said district now or hereafter used. The power of eminent domain vested in the board of directors of said district shall include the power to condemn, in the name of the district, either the fee simple or any lesser estate or interest in any real property which said board by resolution shall determine is necessary for carrying out the purposes of this act. Such resolution shall be prima-facie evidence that the taking of the fee simple or easement, as the case may be, is necessary.”
The order of the Public Service Commission relied upon by Michelas, after caption reciting the proceeding, reads as follows:
“ORDER
“It Appearing There has been filed with the Commission an application by Theodore Michelas for a certificate of public convenience and necessity to operate a water service in Blocks 4, 12, 13, 14, 15 and 16, in the Meadows Addition to the City of Las Vegas; and
“It Further Appearing That there is no such service*175 now being given in said District; and by granting said application would be in the public interest,
“It Is Ordered That the application of Theodore Michelas for a certificate of public convenience and necessity to operate a water service in Blocks 4, 12, 13, 14, 15 and 16 in the Meadows Addition to the City of Las Vegas, be and the same is hereby granted.
“Dated: Carson City, Nevada
April 28, 1941”
(1) It is advisable at this point to dispose of the categorical statement of Michelas that the foregoing order vests in him an exclusive franchise to render water service in the area described as against the similar categorical statement by the Water District that this is a non-exclusive franchise. Patently, on its face, the franchise given in the order granting to Michelas a certificate of public convenience and necessity to operate his service in the six blocks described is not exclusive. However, the matter may not so simply be dismissed. Michelas insists that it is exclusive in this sense, namely, that before any other person or corporation may invade the territory described, such person or corporation must likewise obtain from the commission a certificate or permission authorizing such entry, and that to accomplish this a petition would have to be filed, a hearing advertised and held, and that an opportunity for objection be given, to the end that the commission might determine whether the convenience and necessity of the public would be best served by granting such petition; further, that if at such hearing Michelas could show that he had in all respects complied with any and all rules, regulations, and orders of the commission, that the rates charged by him were reasonable, that the services rendered by him in furnishing water adequately supplied the needs of the district involved, that the public convenience and necessity required no further service, that his large investment had been made pursuant to the certificate granted him by the commission, and that he
This contention on behalf of Michelas leads us to the statutes involved. We turn, first then, to what we have referred to as the Act of 1947, and it must be first emphatically stated that Michelas does not attack the validity or constitutionality of such act or of any section, subsection, paragraph, or part thereof. The act is found in Stats. 1947, p. 553, Chapter 167. Although it is entitled “An Act to create a water district in the Las Vegas valley, Clark County, Nevada; * * *,” both parties refer to it as the “enabling act.” This indeed it is. Section 1 provides that a “water district may be created in the Las Vegas valley, as hereinafter provided for, for the following objects and purposes:” (Emphasis added.) This is followed by subparagraphs numbered 1 to 14, which provide for such matters as having perpetual succession, the right to sue and be sued in its name, to adopt a seal, to take by grant, purchase, etc., and to dispose of real and personal property, to acquire rights of way, easements, privileges, etc., and to maintain and operate works and improvements to carry out its purposes, to store surface and underground waters, to appropriate and acquire water and water rights, import water into the district, to commence, defend, or intervene in litigation concerning water or water rights, to exercise the right of eminent domain, to acquire or condemn lands, water rights, improvements, reservoirs, and other works owned by others, to enter into agreements with the United States or any state, county, or district, public or private corporations, or individuals with reference to the acquisition, use, and administration of waters (carried out in great detail), to incur indebtedness and issue bonds, to cause taxes to be levied and collected for paying its obligations during its organizational stage, to do all things necessary for the exercise of its powers, and to supply water to the United States, the State of Nevada, Clark County, and any city, town, corporation,
Section 2 of the act provides the procedure to establish the Las Vegas Valley Water District by the filing of a petition praying for its organization, with the board of county commissioners of Clark County, with bond, notice, and publication thereof. Section 3 and following provide for a hearing on the petition, the granting thereof, the calling of an election, the nomination and election of officers, their qualifications, provisions for polling places, canvass of votes, terms of office, notices of election, appointment of inspectors, registration of electors and their qualifications, regulation of poll books, and many incidental provisions concerning the election. Organization meetings are provided for and the filling of vacancies on the board of directors.
Sections 9 and following provide the duties of the directors and of the treasurer, remuneration for the services of the directors, limitations on their powers, the sale of bonds and the nature and conditions thereof, and the requirement for the collection of rates and charges for services in such amounts as shall be sufficient to pay operating expenses and provide a sinking fund for the payment of interest and principal on the bonds.
Section 16 contains the following provision: “No board or commission other than the governing body of the district shall have authority to fix or supervise the making of such rates and charges.”
Section 19, as amended,
(2) Michelas cites numerous authorities to the effect that the right of a person whose property is taken for public use to be compensated therefor is guaranteed by both the state and federal constitutions. This of course must be conceded. Michelas then asserts that the rule recited in some of the cases that “there must be a taking altogether, a seizure, a direct appropriation and dispossession of the owner, such a taking as divests the owner of title and control of the property taken, and an unqualified appropriation of it to the public,” is against the weight of authority, citing Lea v. Louisville & N. R.
In City of Tucson v. Polar Water Co., 76 Ariz. 126, 259 P.2d 561, we again have installation by the city of its own waterworks where there had been a prior certificate of convenience and necessity to the water company, and the city extended its boundaries and made its connections to the area in which the water company had been franchised. There, as here, the water company sought injunctive relief, but the court held that any damage suffered by the plaintiff water company as a result of the city’s installing of its own waterworks was damnum absque injuria. In accord, Puget Sound Power & Light Co. v. City of Seattle, 291 U. S. 619, 54 S.Ct. 542, 78 L.Ed. 1025; Alabama Power Co. v. Guntersville, 235 Ala. 136, 177 So. 332, 114 A.L.R. 181. Many cases of similar import arose out of the use by a number of cities
The result of all these cases is that the holder of the prior nonexclusive franchise may not under such circumstances recover damages or prevent the competition by injunction.
Michelas seeks to distinguish the Knoxville and other cases above referred to, because in each of such cases it was the city itself that installed the competing utility, an activity in which the city was entitled to engage unless it had bound itself otherwise by contract, while in the instant case the competition is entered into by the Water District created under the Act of 1947. We do not recognize this as a distinction affecting in any way the principles of law involved. Other distinctions are pointed out by Michelas, but we do not find the same important.
(3) Michelas refers to the general act regulating public utilities (NRS 704.010-704.810) and particularly to NRS 704.330 which requires all public utilities to obtain a certificate of public convenience and necessity from the Public Service Commission and more particularly to NRS 704.340, which reads: “A municipality constructing, leasing, operating or maintaining any public utility shall not be required to obtain a certificate of public convenience.” He then points out that in White Pine Power District v. Public Service Commission, 76 Nev. 497, 358 P.2d 118, 119, this court, after quoting White Pine Power District v. Public Service Commission, 76 Nev. 263, 352 P.2d 256, held that the appellant power district, not having been granted a certificate from the Public Service Commission of Nevada, could not maintain its suit for an injunction. There we said: “Only municipalities * * * maintaining any public utility are exempt from the provisions of
But Michelas further argues that the power district act, NRS, Ch. 312, particularly NRS 312.030, contains the identical provision found in the Act of 1947 to the effect that the act is complete in itself irrespective of any other special or general act of the legislature, and that if the White Pine Power District had no powers without a certificate from the Public Service Commission, it must follow that the Las Vegas Valley Water District had no powers without a certificate. However, there is a clear distinction. The power district act, under which the White Pine Power District was organized, must of necessity be construed in connection with the general act regulating public utilities. The “identical provision” referred to is limited to that found in both the power district act (NRS 312.030) and in the Act of 1947 (sec. 19) as the latter act was originally written. That language was later drastically enlarged by the legislature, as quoted by us above as being part of sec. 19, precluding the exercise of any power by the Public Service Commission. In addition the restrictive provisions of sec. 16 were retained. This is entirely consistent with the language used by us in White Pine Power District v. Public Service Commission, 76 Nev. 497, 358 P.2d 118.
In addition, the Act of 1947 contains sec. 16 providing specifically that “no board or commission * * *,” other than the governing body of the water district shall
Even more conclusive is the following. That part of the power district act (now NRS 812.030) which provides that it is complete in itself and controlling and that no other special or general act shall apply, except as provided in this chapter, is followed by numerous provisions vesting control in the Public Service Commission. A certified copy of the original resolution reciting the advisability of creating the district must be filed in duplicate with the commission. NRS 312.060, Sub. 1. The commission must then make an investigation. 312.060, Sub. 2. The commission must then approve or disapprove the proposed creation of the district. 312.060, Sub. 3. It must find, before approval, that the public convenience and necessity require the creation of the district and that it is economically sound and desirable. 312.060, Sub. 3(a), (b). The territorial limits of the district may be altered only by order of the commission. 312.220. Districts may be consolidated or dissolved only by order of the commission. 312.230, 312.240. No such provisions or conditions can be found in the Act of 1947.
(4) Finally, in oral argument before this court, Michelas argued the equities of the case; that his large investment and labor that went into his furnishing of service to a portion of the Meadows Addition to the City of Las Vegas under what appeared to him to be an exclusive franchise so long as he complied with all rules and regulations of the Public Service Commission was being lost to him through no fault of his own; that this loss was the result of the deliberate action of the Water District in invading his territory; that equity could be done to all parties by the Water District’s condemnation of Michelas’ property for a fair compensation, or that at the least the Water District should be compelled to apply to the Public Service Commission for a certificate, under proceedings at which Michelas’ objections
Reversed with costs to appellant.
The record on appeal includes briefs of the parties in the district court. They have no proper place in the record and appellant will not recover costs for including them.
Stats. 1956-1957, p. 778, Oh. 402.
“704.210 Commission's authority to supervise, regulate public utilities. The commission shall have full power:
“1. To prescribe classifications of the service of all public utilities, and fix and regulate the rates therefor. * * *
“3. To make just and reasonable regulations for the apportionment of all joint rates and charges between public utilities.”
Mississippi Power Co. v. City of Aberdeen, 5 Cir., 95 F.2d 990; West Tennessee Power & Light Co. v. City of Jackson, 6 Cir., 97 F.2d 979; Metropolitan-Edison Co. v. Ickes, D.C., 22 F.Supp. 639; Southwestern Gas & Electric Co. v. City of Texarkana, 5 Cir., 104 F.2d 847; Kentucky-Tennessee Light & Power Co. v. City of Paris, 173 Tenn. 123, 114 S.W.2d 815, 118 A.L.R. 1025.