Consumers' Gas Co. v. Kansas City Gaslight & Coke Co.

Barclay, J. Giving to the petition the construction most favorable to the pleader, it yet states no cause of action for equitable relief. Plaintiff claims the right to manufacture and vend gas to the people of Kansas City and to adopt the needful and usual measures [507] for that purpose. , It asserts that defendant’s franchise to make and sell gas in that city is not exclusive but is claimed to be so by defendant; and that such claim of exclusive right and of an intention to assert it is an irreparable injury to plaintiff’s credit and business, against the continuance of which an injunction and other proper relief should be granted. As no intimation is thrown out of any insolvency of defendant we need not consider whether such an allegation would strengthen plaintiff’s position on the pleadings. As they now stand the point in dispute is simply whether or not equity can properly intervene, by injunction or otherwise, to prevent defendant from asserting a claim of exclusive privilege in the manufacture and sale of gas in the circumstances already described. Plaintiff does not allege that defendant is interfering in any way with the property of the former, further than by making the claim of exclusive privilegé or franchise mentioned. As now presented, therefore, the case is an attempt to enjoin defendant from an alleged slander of the title and franchises of plaintiff. As such it is not one for equitable relief on the facts stated. This question has been so lately and fully considered by a court of high authority, whose views on this point we approve, that we content ourselves with merely citing its opinions on the subject. In them will be found references to many other cases supporting the conclusion we announce. Whitehead v. Kitson, 119 Mass. 484; Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69. Whether or not defendant has in fact the exclusive privilege claimed, is not material to the determination of this case. We, therefore, regard the ruling of the trial court sustaining the demurrer to the petition as correct and affirm its judgment, in which all concur, except Brace, J., absent.