Bisbee daily review., 1906-08-02
DECISION IN THE WATER CO.'S.
 CASE
Text of Doan's Opinion in Sus- taining Injunction Against
 Huachuca Co.
Special to Review.)

ing is a copy of the decision given by Judge Doan in the City of Tombstone Huachuca Water Company case. which was handed down on yesterdaY:
 he Court said:
 The case or the City of Tombstone vs. the Huachuca Water Co.,, which was submitted some time ago, l have examined the briefs which were sub mitted and 1 have determined that the injunction should be perpetuated as heretofore given upon the theory that the franchise was in a manner an i'm piled contract between the town granting and those accepted the run ming life of the franchise. The town gave the franchise permitting them to lay their pipes on condition of their furnishing free water for fires and oth- CT city use and permitting them to make their contracts for sales of wa ter on certain restrictions to the citi- Zens of the town and examining the cases cited I find that it is held that that being the case the town would not be authorized to interfere with the laying of their pipes or with their continuous use of the streets. That that was something that was agreed to in the franchise given. In other words. the company themselves will not be permitted to do any acts that will be breach of an implied con- tract between the. town and the com pany.
 The prior appropriation theory was not given any attention by the court in the consideration of the question, and the motion to strike out the tes- timony from the case was not obsery- ed or granted, but the case was con sidered very largely as law question and not a question of fact. On the theory that the results were unprofita- ble to the grantee of the franchise, that is not anything that would have any bearing on the findings of the court. The holding of the court in this matter and the feature of the case elected in it by reason of the granting of the franchise to the other company was not considered as of any importance in this case, the franchise not being exclusive, and at the time the privilege was granted and accept ed was not taken into consideration. The order. therefore. will be that the defendant company will be enjoined from taking up their pipes or mains. or fro disconnecting their pipes as was set forth and prayed for in the com plaint.
 Mir Gibson-In the preparation of the decree in this matter, your honor. we should like a decree to be drawn in such a way that the company would not be precluded from dispos- ing of any surplus water that they might develop and store.
 The Court don't think, MT. Gib- son, that that is in this case now. MT. Gibson-we would not want a decree drawn in any way that would limit our operation.
 The Court know that you argued that question in your brief. but l did not take that view of the case. l think understand about what you re- fer. That is, if the water supply is sufficient to supply other localities than this there is nothing in this ac- ton that would prevent the water com pany from laying mains and supply ing water to other localities as well as &&.o this. Is that what you mean ?
 MT. Gibson-Yes; we simply wanted it stated in some way so that there could be no question in after years about it.
 The Court-Very well. The counsel may bear that in mind in drafting the decree.
 MT. Gibson-We may also want to submit some special findings in the matter.
 The Court-Very well. MT. Gibson-In order that we may prepare our case on appeal in case we decide to appeal, and in the matter of the costs of the case. It would seem to be that this was rather a friendly contest and the action of the defend ant company was in great measure by the preceding action on the part of the city in taking such a step in granting the other franchise which in. terfered materially with our plant, we do not think that 1t would be incon- sistent that each party pay their own costs.
 The Court-what will the costs amount to?
 Mir. Bowman-The costs do not amount to anything except serving the summons or injunction and the clerk $ costs. l do not see any reason wh, each party should pay it's own costs We have recovered. They have beer found guilty of what we alleged they were trying to do.
 The Court-H the costs were excep- tionally heavy I would consider that.
 MT Bowman-We won't have any trouble about the costs.
 The Court-I will make inquiry about what the costs are.
 -O
 MT Rockefeller. through his attor- ney, has entered his appearance fin the tho pO1Trf of Trnoc (r~..~k