On Second Petition for Rehearing.
RILEY, J.(dissenting). Upon careful consideration of the record in the above case, I am convinced that the second petition for rehearing herein should be granted.
This action was commenced by plaintiff, E. D. Dail, against Adams Building Corporation and the city of Tulsa for damages against the first named defendant and for mandatory injunctive relief or, in the alternate, damages against the city of Tulsa.
Plaintiff, in his amended petition, alleged that in 1928 his predecessor in title constructed a private sewer from a point near the city limits of Tulsa, along a county highway to the Arkansas river. An easement had been granted by the board of county commissioners. In 1939, plaintiff, by written contract, granted to the city of Tulsa the privilege of connecting on to the sewer line at a designated point, but the privilege was limited to a connection with the sewer line to extend it eastward so as to serve Woodland Heights addition and block 1, Leoki Place addition to the city. A copy of the contract was attached to said amended petition and is as follows:
“Tulsa, Oklahoma
“June 28, 1939.
“The Honorable Mayor and
“Board of Commissioners,
“City of Tulsa,
“Tulsa, Okla.
“Gentlemen:
“For one and no-100 ($1.00) Dollars, and other good and valuable considerations, the receipt of which is hereby acknowledged, we, the undersigned, as owners, hereby grant to the City of Tulsa the privilege of connecting to our private sewer at the manhole in 36th Place, 135 feet east of Peoria Avenue in the City of Tulsa, this connection to serve as a perpetual out-let and easement without further compensation for the proposed sanitary sewer to serve Woodland Heights Addition and Block One (1) Leoki Place Addition to the City of Tulsa, according to the duly recorded plat thereof.
“Permission for this connection is granted to the City of Tulsa with the understanding that the City of Tulsa is to maintain and upkeep all of said sewer lines referred to above, together with our lines between the points of this connection and the outlet at the Arkansas River.
“E. D. Dial
“By Mary Blockman
“Witnesses:
“Mrs. Armita Gulinger. Edwin O. Johnson. W. L. Tester.
“Accepted: City of Tulsa
“Dr. T. A. Penny, Mayor
“Milton W. Davis, Auditor”.
The petition further alleged that on February 12, 1946, defendant Adams Building Corporation made application to the city for permission to connect to the sewer line for the purpose of serving certain lots in Adams Estates addition lying further east and outside the city limits. Adams Estates addition is located in the S. W. Vi of N. E.- Vi, sec. 19, twp. 19 N., R. 13 E. Adams Building Corporation was informed of plaintiff’s ownership of the sewer line *454and the existence of the contract aforesaid, and plaintiff’s permission was necessary for the connection. Adams Building Corporation falsely represented to the city that plaintiff’s consent had been given, so that Adams Building Corporation could wrongfully make the connection without plaintiff’s knowledge or consent. But plaintiff, having been informed that said Adams Building Corporation was about to make said connection and had commenced work to that end, and before the connection was made, notified Adams Building Corporation not to make the connection. Plaintiff explained that he was the owner of that part of the sewer line; that the city had no authority to extend the sewer line beyond Woodland Heights addition and block 1 of Leoki Place addition without plaintiff’s consent. The work was discontinued for the time, but thereafter, and in the night, defendant Building Corporation unlawfully connected so as to extend the sewer line into Adams Estates. Adams Building Corporation is constructing numerous houses on the lots in Adams Estates and has constructed lateral sewer lines to run sewage through plaintiff’s sewer line. Plaintiff’s sewer line is limited in capacity; the use of the line by Adams Estates will overtax plaintiff’s line so as to make it impossible for plaintiff to sell lots in his addition with sewer service, and also render it impossible for plaintiff to grant other customers outside the city limits, to the south, the right to connect to plaintiff’s sewer. Plaintiff will be denied revenues to which he will be entitled, to plaintiff’s damage in the sum of $5,400, which, by prayer, plaintiff sought.
Plaintiff also sought a mandatory injunction against the city of Tulsa to cancel and vacate the order and permit given to the Building Corporation, and to require the city to order a disconnection of the sewer line, and for failure so to do, for damages against the city in the sum of $5,400.
Defendants interposed separate general demurrers to the petition as amended. The demurrers were sustained; plaintiff elected to stand; judgment was entered dismissing; plaintiff appeals.
The effect of a general demurrer is to admit the truth of every well-pleaded statement of fact. Grady v. First State Bank, 143 Okla. 268, 288 P. 481. Under the rule, for the purpose of appeal, we consider as true every well-pleaded statement of fact contained in plaintiff’s amended petition. On and prior to June 28, 1939, plaintiff was the owner of a private sewer line entirely outside the limits of the city of Tulsa. The sewer line extended from a point near the city limits to the Arkansas river. On June 28, 1939, the contract was executed. Plaintiff, as owner, for a consideration, granted the city the privilege of connecting with the sewer, at the particular place. The connection was intended to be a perpetual outlet for a proposed sanitary sewer to serve “Woodland Heights Addition and Block One (1) Leoki Place Addition to the City of Tulsa”.
The other good and valuable consideration was that the city would maintain all the sewer lines mentioned in the contract, which were plaintiff’s sewer line and the proposed sewer line to serve Woodland Heights addition and block 1, Leoki Place addition to the city of Tulsa.
The contract gave the city the right to connect with plaintiff’s private sewer for a specific and limited purpose as stated, and no more. The right was limited as to extent of use. The only implication is that any and all property owners within the territory described had right by contract to construct and connect lateral sanitary sewer lines to the city’s proposed main sewer line to be connected with plaintiff’s line at a designated point. The contract did not, and does not, authorize the city to grant permission to any property owner outside the described *455territory (Woodland Heights addition and block 1 in Leoki Place addition), whether within or without the city limits, to connect. Nothing more and nothing less was expressed; nothing more can be inferred.
By the plain terms of the contract, use of plaintiffs line was limited to a sanitary sewer line to serve the specific territory described. The contract must have been so understood and construed by the city of Tulsa when Adams Building Corporation made application for permission to connect and combine the sewer lines.
The maxim “expressio unius est ex-clusio alterius” applies. The mention of one is the exclusion of another and when certain persons or things are specified in a law, contract, or will, an intention to exclude all others may be inferred. Therefore, when the contract mentioned or specified the territory to be served by the proposed sewer line as “Woodland Heights Addition and Block One (1) Leoki Place Addition to the City of Tulsa”, the intention to exclude all other territory is to be inferred. That is the contract.
When Adams Building Corporation made application to connect with the combined sewer line of plaintiff and that of the city, the city was without power and authority to grant the permit without the consent of plaintiff; the city so informed Adams Building Corporation. Thereafter, as alleged in the petition, Adams Building Corporation falsely and fraudulently represented to the city that it had plaintiff’s permission to make the connection; by false and fraudulent representations, the Corporation obtained the permit from the city.
But that is not all. Plaintiff learned of the púrpose of Adams Building Corporation to make the connection. Plaintiff warned it of the contract, notified it not to make the connection, and Adams Building Corporation ceased, for a time, to do wrong, but later, in the nighttime, the connection was surreptitiously made. A wrong was perpetrated against plaintiff; a fraud practiced upon the city. This, the courts may not properly approve.
It is clearly the duty of the city to join plaintiff in seeking the cancellation of the permit so fraudulently procured. The petition states a cause of action against both defendants.
Defendants rely on Hale v. Warren, 174 Okla. 404, 50 P. 2d 631, and Glenn v. Woodworth, Mayor, et al. (S.C.) 14 S.E. 2d 555. Neither of these cases applies; the facts are entirely different.
In Hale v. Warren, supra, the plaintiff, Warren, was the owner of a part of a lot in the city of Pauls Valley, not served by the city’s sanitary sewer. Plaintiff and her then husband had obtained permission from the city to extend the sewer, at their own expense, along an alley to plaintiff’s lot. The work was to be done under the supervision and approval of the city engineer, without expense to plaintiff. When completed, the sewer extension was to become subject to management and control of the city.
Those facts are exactly opposite to the facts in the instant case. There, the lot owner sought the use of that part of the sewer which had been constructed by the city, in the alley leading to plaintiff’s property; permission had been given to construct the extension on the property of the city for plaintiff’s benefit only, but when the extension was completed, it was to be a part of the city’s sewer system.
In the case at bar, plaintiff owned the sewer line located entirely outside of the city. The city sought and obtained permission to connect for the benefit of the city (not for plaintiff’s benefit) and to serve the territory included in Woodland Heights addition and block 1 in Leoki Place addition. The connection would save the expense of building a new sewer line to an outlet in the Arkansas river. For this bene*456fit, the city agreed to pay $1 and assume the expense of maintenance of the combined line.
The facts in Glenn v. Woodworth, supra, are likewise entirely different. There the private owner of property outside the city sought and obtained permission from the city to construct a sewer line across city-owned property. The connection with the city’s sewer was sought for the property owner’s benefit (not for the benefit of the city). The opinion discloses that in event a condition arose so that plaintiff’s sewer line became overtaxed (as pleaded in the instant case) a different question would be presented and a different conclusion might be reached. We here deal with that difference.
To allow the additional connection to be made, under the facts pleaded in plaintiff’s petition, so as to render plaintiff’s sewer useless to him for the purpose for which it was constructed, would amount to a taking of plaintiff’s property for public and private use without just compensation. Such a confiscation is forbidden by the Constitution and laws of this state.
I respectfully dissent to the order of the court denying the second petition for rehearing. I am authorized to say that HURST, C.J., and LUTTRELL, J., concur in this dissent.