The Montgomery advertiser., 1905-08-08
HEADNOTES DECISIONS
 OF SUPREME COURT

HEAT & POWER co.
 Bill in Equity by Electric Light Com pany to Enjoin Another Electric Light Company from Stringing It's Wires along a Street of City, Appeal from the Chancery Court of Montgomery in Equity.
 l. Bill to enjoin stringing of wires along the street; condition of ordinance; does not change the rule as to neces-
 sity of averments of facts.-Where an
 electric light company which Is oper-
 ated in a city and has it's wires strung upon poles along the streets of said city, files a bill to enjoin another light company from stringing It's wires along a street which Is occupied by tho com plainant, and 1t is averred that the de- fendant company held a franchise from | said city for the purpose of furnishing
 electric lights, power. etc, and that said franchise contained a special pro- viso which obligated the defendant to so erect its poles and wires as not to interfere with the poles and wires of complainant" the existence of such proviso in the franchise granted to the defendant, does not change the rule of
 law that the complainant, in seeking It's injunction must by its bill show the
 necessity for the injunction prayed for
 by the statement of facts, and not by the mere statement that he complain ant will be irreparably damaged.
 
 case where the averments of the bill upon which the prayer for an injunction is based. are that complainant lis fn-
 formed and believes. and upon such information and belief ayers the facts
 to be that" the defendant intends to proceed and string its wires on poles already erected on said street, and make necessary connections therein,
 which will interfere with the poles and wires of your orator. and irrepara-
 bly damage your orators wires and make 1t impossible for your orator to furnish lights" etc, according to con tract. and that said defendant has con-
 nected its wires with one place of bus
 mess along said street. and Is furnish
 ing light therto. and that ''it Is dan
 gerous to the life and property of the citizens of Montgomery for the defend- ant to be allowed to connect its wires," in the manner above, stated. such aver ments are mere conclusions of the pleader, and are insufficient. in that
 they do not set out facts upon which issue can be joined. testimony taken and decision had as to whether ire
 parable injury will be inflicted or dan ger incurred, etc.
 B. Electric light companies; no ex- elusive right in the streets of a city, It Is not within the power of a muni- cipal corporation to grant any exclus- i've privilege In it's streets to another corporation, SO as to deprive itself of the right to revoke the same and grant like privileges to another corporation.
 4 Same: same.-Where a municipal ity has granted to corporation the right to use its streets for a public utility it has the right to grant like privileges to another corporation. and to provide such restrictions and regu- lations as are necessary to prevent in
 jury to the property of the first occu- pant and to prevent an interference with the discharge of it's duties as- sumed to the public; and where such interference involves danger to the public, the courts will prevent 1t even without an ordinance upon bill proper ly filed
 5 Municipal corporations: when res | olution not of a permanent character An ordinance passed by the City Coun- ell of a municipality, granting permis- sion to an electric light company to | maintain for a period of twenty days it's line of wire, as then strung along | A certain designated street in said city. | and to make all necessary connections | Herewith, and which provide that the | same should not become effective un- | less officials of the company obligate | themselves "at the expiration of twenty | days to replace said wires in accord | ance with such ordinance and regula- tions of the City Code as may then be in force" Is not a resolution of a per | manent character within the meaning | of an ordinance of said city which re- | ouires the vote of the majority of the | members of the City Council to adopt | a resolution or ordinance of perma- nent operation.
 5. Electric light companies; rights | of competing companies to use all | an electric light com | many has by an ordinance of a city | been granted the right to erect its poles | and string its wire along the streets of said city. 1t has no special rights in | the streets of said city except IS grant | ed by the municipal authorities. and | such company does not acquire rights | over any distinct or separate part of | the street such as the right of way of | A railroad company over which another ] comnany cannot pass without institut- ing condemnation proceedings; but the | rights of the first electric light com | nanv who occupies the street of said | connnany are subject to the rights of | any other electric light company to which the city may grant the right to | string It's wires over the street. subject l only to the right of the first company | to be pfotected from injury by the | s.rinaing of other wires so near as to | jn4ure It's property or prevent the dis | charge of it's duties to the public
 Affirmed.
 Opinion by Simpson, J
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