specially concurring:
Since there is an action pending, for the express purpose of having the respective rights of the parties in interest to the property here in controversy determined, this action may properly he regarded as, in a sense, ancillary to the former, and one in which the real legal questions at issue may not he properly settled. It should he treated, in effect, as an action simply to preserve the status quo, pending a final disposition of the other suit.
Solely, therefore, upon the assumption that the public health is involved, which seems clearly to be the fact, from the whole record, and that by statute it is not only made the right, hut the duty of the city authorities, by proper requirements, to regulate the operation of sewers, whether public or private, I concur in the conclusion reached by the majority of the court for a modification of the injunction, to be in force until final decision in the main case. I express no opinion upon the legal questions involved, and concur in the final order made, as above indicated, for the reasons here stated only.
Mr. Justice Musser specially concurring in the conclusion and judgment of the court:
I concur in the conclusion and judgment announced by this court for the following reasons:
*141The city caused the quo ivarranto proceedings to he brought, to test the right of the sewer company in its streets and alleys, and to determine the ownership of the pipes now laid in the ground.
It is proper, therefore, to require it to abide the result of the quo ivarranto action which it caused to be initiated, so far as the preservation of the public health and the good order and welfare of the city will permit.
The sewer company brought this action for purely injunctive relief, basing its right to such relief upon the ground that it had rights in the streets and alleys which were being unlawfully invaded. It made no mention of the quo ivarranto action in its complaint, but invoked the jurisdiction of the court, and sought the protection of its injunctive power, to protect it from what it alleges- was the unlawful invasion of lawful rights. It has thus squarely and unequivocally demanded that in this action should be determined what its rights are, or whether it has any rights, in the streets and alleys of Leadville. This issue, made by the company itself, should be squarely met and determined now. When determined, it will be found that - the sewer company has no right in law to operate a sewer, or to dig up the streets and alleys, or to compel the collection of sewer charges in the city of Leadville.
It has been determined in this state, in the case of Weaver v. Canon Sewer Company, 18 Col. App. 242, that city councils, under the general law, have no power to grant a right or franchise to any private person or corporation, to operate a sewer within the city limits and collect charges for the use of the same. The reasoning of that case is supported by authority, and in my judgment is the law. In that case reference is particularly made to subdiv. 10 of sec. 4403, *142Mills’ Ann. Stats. If we look at other sections of our statute, the decision of the court of appeals becomes stronger. Subdiv. 7 of the same section provides that a municipality shall have power to régulate the openings in its streets for the laying out of gas or water mains, and the piping, building and repairing of sewers, tunnels and drains, and erecting gas lights. This is immediately followed by a provision that private individuals may have the right, with the consent of the city council or town trustees, to erect gas factories, and lay down pipes in the streets or alleys in the city or town. The grant of this privilege to gas companies alone, in this section, excludes the granting of it for sewers. The 60th subdivision of the same section, in 3 Mills’ Eev. Sup.., gives the power to permit steam or street railroads to operate its cars in the city upon consent of the owners' of one-half of the frontage. Subdivs. 67 and 69, 3 Mills’, gives the power to grant to private individuals or corporations, the right to build and operate water, gas, or electric light works and to charge and collect for water, gas or electric light. Nowhere in the statutes can be found any warrant of law for a city or town to grant to a sewer company the fight to construct and operate a sewer system and to charge and collect for the use thereof. Time will not permit the citation and examination of the many other authorities that sustain this position. Nor can it be said that this company has acquired any rights by estoppel, or by being permitted to occupy the streets for so many years, for, as is abundantly shown by the authorities, cited by Mr. Justice Hill, no right can be created by use or estoppel against a municipal corporation, unless the municipal corporation had power to grant the right in the first instance.
The question of the ownership of the sewer pipes is not in this action. That issue is involved only in *143the quo ivarranto action. It can and should be determined there, and if determined in favor of the sewer company, the court in that action can and should afford to the company ample protection; so that it may lawfully remove its pipes, or otherwise lawfully dispose of them. It is conceded by all that the company can dig up the streets and alleys only under the supervision and regulation of the city. If this is so, it is right to say that pending the determination of the quo warranto action the company shall not dig up the streets and alleys, except under the regulation and supervision of the city. As it is made to manifestly appear that under the protection and judgment of the court below, the company will endanger the public health by disconnecting users of its system who fail to pay its charges, it should be restrained from making these disconnections, it appearing that the law affords another and ample remedy to the company to collect all lawful charges. In addition, it appears, that under the law of this state the company has no right to operate a sewer and collect charges for sewer service, or to dig up the streets, or alleys to compel the payment of charges, therefore, no rights of the company are at all interfered with by restraining it from digging up the streets for the purpose of making disconnections. Finally, for as much as all matters in controversy cannot be settled in this action, but some must be determined in the quo ivarranto action, it accords with good sense and sound morals, and inures to the preservation of the peace, welfare and health of the inhabitants of the city of Leadville to preserve matters in statu quo, as designed by the judgment of this court, until all matters in controversy can be finally determined, and put at rest. Much illogical reasoning, great use of opprobrious terms, such as confiscation, municipal dishonesty, and the like; assumed hypotheses, and *144seemingly righteous expressions, are indulged in by those who assail the judgment of this court. Such things have no effect, beyond the hollowness of their own sound. Valid rights need not be bottomed on assumed hypotheses, supported by illogical reasoning, anchored by opprobrious terms, or surrounded by the halo of seemingly righteous expressions. Such things only cause to appear lawful that which is unlawful. On behalf of the sewer company, it is said that to prevent it from disconnecting the users of its system, deprives it of the power to enforce its contracts with its patrons, and is confiscation pure and simple. To say that, is to admit that these contracts cannot he enforced at law. I have' yet to learn that the courts of this state will refuse to any of its inhabitants the enforcement of any lawful contract. If the company cannot enforce its charges, save by disconnecting, it is because its charges are unlawful, and made in the operation of an unlawful enterprise.
By the judgment of the lower court, the injunctive power of a court of equity is employed to permit this company to enforce unlawful contracts, and collect unlawful charges,' by the strong arm of might, which contracts it cannot enforce, and which charges it cannot collect in a court of law. This is beyond and without the law. It is anarchy pure and simple. No claim that the company has valid rights is made in defense of the judgment of the court below. As we have seen, the very argument of its defenders shows that it is indefensible, for it assumes that which is without the law. The law itself, all the rights of Leadville, the peace, welfare and health of its inhabitants, it is said, should give way to enable this company to unlawfully enforce unlawful contracts. Much is also said about the investment of money hy the sewer company. A sufficient answer to that is, that he who invests his money in the hazard *145of an enterprise that is not supported by the law, must not be heard to complain when the law arrests that enterprise. Courts of equity should ever, when necessary, be quick to protect lawful rights from unlawful invasion, but they should always refuse to give aid and assistance to anything that has not the warrant of law to support it.