dissenting:
I cannot assent to the judgment ordered. In the first place, the appeal; should be dismissed. The judgment or order appealed from is purely interlocutory. It recites that it should not in any manner interfere with the quo warranto proceeding, or the adjudication of the rights of the parties in that action. Its effect is merely to enjoin the city authorities from committing the acts which the judgment inhibits, until judgment is rendered in that proceeding, determining the rights of the parties to the subject-matter of controversy, so that if it is erroneous or not justified under the pleadings and evidence, then it can only be reviewed by virtue of the express provisions of our civil code, and the repeated decisions of this court, in connection with the final judgment which may be rendered in the quo warranto action.
It is said in the main opinion that the judgment is final because the parties to it are different from those in the quo ivarranto suit, and according to the language of the judgment it is to remain in force forever, with the proviso that it shall not be taken to in any manner interfere with the trial, or the adjudication of rights as between the parties in' the quo warranto suit. It certainly is not final, because its purpose is merely to preserve the status quo until the final disposition of the quo - warranto action. *146When that proceeding’ is finally disposed of the judgment here on review will have served its purpose, and will no longer have any force or effect. To say that the parties to it are different for the purpose of distinguishing it from the quo warranto suit is merely making a distinction without a difference. In the quo warranto suit the action is on behalf of the city of Leadville. Its mayor is'the relator. In the action at bar, the city is the real party in interest, and the individuals made defendants were made ’so because they were assuming to act on behalf of the city in committing the wrongful acts which it was the purpose of the action to inhibit.
It is asserted in the main opinion that the judgment appealed from is final because the plaintiff did not mention in its complaint the existence of the quo tvarranio suit; and'further, that if it was intended that the judgment demanded was to be interlocutory only, the sewer company should have requested the court to have made the parties to this action parties to the quo warranto suit. If the complaint filed by the sewer company was defective because of its failure to mention the existence of the quo warranto action, that defect was cured by the answer filed on behalf of the defendants, wherein the existence of the quo warranto proceedings was averred. It is settled beyond dispute, that a pleading defective for failure to aver some necessary fact may be cured by the pleading on the other side. That was what was done here. So far as the parties are concerned the real party in interest, the city of Leadville, was before the court in both actions, and the additional parties in the case at bar are those who claimed to represent the city in their official capacity, when' they committed the wrongs of which’the plaintiff company complained.
If, however, we review the case upon its merits, *147the judgment of the district court is right, and the one directed by this court is wrong, hecause.it sets the seal of approval on municipal dishonesty; it sanctions the confiscation and taking of property without due process of law; it grants a municipality rights to which it is not entitled; it promulgates the doctrine that the commission of a wrong creates a cause of action in favor of the wrong-doer. It refuses protection to property rights which it is clear should he protected; it imposes a burden upon the sewer company to keep its plant in repair, but denies it the privilege of enforcing its rights against persons connected with the system who refuse to pay. For these reasons and many others which might be advanced, the judgment ordered by this court is unjust ; and has neither reason, logic, law nor facts to support it when the record is examined and the undisputed facts in the case are disclosed.
In 1886 the sewer company applied to the council for permission to lay sewer pipes in the streets and alleys of the city. The records of the council show that the application was granted. Thereafter, at three different times, namely, in 1888, 1890 and 1891, it 'appears from the records of the city council that permission was granted the sewer company to extend its system. Property owners along and adjacent to the system connected therewith, under contracts providing stipulated rates, by virtue of which the company reserved the implied right to disconnect those in default, or who refused to pay for the use of the system. This statement; that the company had the right to disconnect users in such circumstances is made advisedly. By operation of law the sewer company would have the right to disconnect those who were in default, or refused to pay, just as an electric light or gas or water company, when they connect a consumer with their system for the purpose *148of furnishing light, heat, or water, at a stipulated rate,, have the right to disconnect those who refuse to pay for the services rendered, or a grocer who has agreed to extend a customer credit for provisions purchased, with the understanding that he shall pay at stipulated times, may refuse further credit if the customer is in default, or refuses to pay the bills which he lias contracted.
The city, by ordinance, prescribed the conditions under which the company might excavate in the streets for the purpose of extending, maintaining and repairing its system, and making connections and disconnections, so as to protect the streets from unnecessary injury, and for the purpose of keeping them in repair. For the period of twenty-two years the company operated its system without objection, let or hindrance on the part of the city. During this period the record does not disclose that there was any complaint by patrons of the system regarding the rates, or its efficiency. In February, 1908, the council passed a resolution whereby it purported to revoke all permits and licenses granted the sewer company, inhibited it from making any excavations fo.r any purpose whatever, decreed that it should not be permitted to charge any one for sewer service, and declared that it did not recognize in any manner any rights of the company to its sewer system, or to •charge for its use. No excuse was offered for this extraordinary action, but it was an attempt on the part of the city, pure and simple, to confiscate and take over the property of the sewer company, without offering any reason therefor, or any claim that it was legal to do so.
Immediately upon the passage of this resolution the city, through its mayor and members of the council, notified persons whose property was connected with the sewer not to pay the company any charges *149for its use, and that the city, through its police force, would prevent the company from disconnecting the laterals of users with the sewer mains, and would cause the arrest and imprisonment of anyone who undertook to excavate in the streets for the purpose of disconnecting those who refused to pay. A few weeks after this most extraordinary attempt on the part of the city to determine for itself the rights of the sewer company, and the action of the city officials in assuming the authority to arrest anyone who might excavate in the streets for the purpose of disconnecting the laterals of users who refused to pay for the use of the system, a stoppage occurred. The company took steps to put the system in order. The city, through its police officers, at once prevented the company from making the needed repairs, but magnanimously offered to make them if the company would furnish the material and pay for the labor. The company refused to accept the proposition, and the sewer was repaired by the city. Prom that time the attitude and action of the city officials was such that the sewer company, by force, was ousted of all control and possession of its system, by being prevented from repairing it, or connecting or disconnecting therewith, or making any excavations in the streets, for any purpose. Confronted by this lawless action of the city authorities, the company applied to the district court for an injunction to restrain the city from further interfering with it. On a full hearing the facts, even much stronger than above stated, were not only established by the admissions of the defendants in their pleadings, but by testimony which was undisputed. The court rendered judgment granting the relief prayed for, and enjoining the city from in any manner interfering with the company in maintaining and operating its system, with respect to repairing it, or disconnecting or con*150necting therewith, in accordance with its rules and regulations, with the proviso that the company, in maintaining and operating its system, and in excavating in the streets, should observe the rules and regulations of the city as to danger signals, and as provided by ordinances regulating the conditions under which such excavations should be made.
That this judgment was right under the established facts cannot be doubted. In order to reach this conclusion, it is not necessary to resort to precedent, statute, or maxim. The facts speak for themselves, and irresistibly lead to the conclusion that the judgment of the district court could not have been otherwise. All judgments, though formulated under rules of law, are based upon the one proposition, that they are right and just, as distinguished from that which is wrong and unjust, when tested by the facts upon which the judgment is based. This court has modified that judgment by directing one to the effect that the city be restrained from taking possession of the sewer system, for the purpose of operating it, or in any manner interfering with the company in its operation, except so far as it may be necessary to protect the public health, and that the sewer company be enjoined from disconnecting any user of the sewer for the purpose of enforcing collections for its use, but it is permitted to make excavations where necessary to repair, maintain and preserve the system. The injunction thus directed, as to both parties, is to remain in force and.effect until their rights in'the subject-matter of controversy be finally determined in the quo warranto proceedings now pending, or in some other appropriate action. The fact that the judgment here directed is only to remain in force and effect until the quo warranto case is decided, demonstrates that the one now being considered on appeal is only interlocutory, for when that case is *151decided, the judgment directed by this court will cease to have any force or effect thereafter. In short, the judgment here ordered is nothing more or less than interlocutory, because it reviews and modifies one which was purely of that character.
The judgment here demanded by the city, namely, that the injunction be dissolved in toto and the complaint dismissed, which would permit it, until the rights of both parties are determined in some appropriate action, to enforce its remarkable fiat as contained in the resolution, by assuming to fix the rights of all parties to the subject of controversy, is more nearly in consonance with justice, unjust as it would b®, than the judgment directed by this court. Notwithstanding its lawless action, and the results which would follow the judgment demanded by the city, the latter seems to still have a sufficient sense of justice remaining to realize that if it enforces its fiat, the burden of maintaining and keeping in repair the sewer system would devolve upon the city. This would relieve the sewer company from all expense and responsibility. The judgment of this court inhibits the city from interfering with the company in maintaining and keeping its system in repair as a going plant, thus casting upon it the burden and responsibility of keeping it in proper repair, but at the same time says it shall not enjoy the fruits of the burden thus imposed, by disconnecting those who refuse to pay for the use of the sewers, although they may be entirely irresponsible, and the company has the right under the contracts with those connected with the system to disconnect such as are in default or who refuse to pay; but must maintain at its own expense a sewer system for the use of those who will not pay, and can never be made to pay; in short, a utility corporation is required to maintain its system at its own expense, but is denied the privilege of *152collecting any revenue by the enforcement of its contracts in so far as they relate to disconnections. This result, so manifestly unjust, springing, as it does, from the judgment of the highest tribunal in this state, is certainly to be regretted. Figuratively speaking, the sewer company came into court asking for the loaf of bread to which it was clearly entitled, and this court has assumed to answer its prayer by handing it a stone. There is no half-way line defining the rights of the litigants in the subject-matter of controversy. They are not jointly interested in it. The company is entitled to' control its property, absolutely, until its rights are .determined in a court of law, or it has none whatever to protect. Notwithstanding this situation, this court has assumed, with neither facts, law, nor logic to support it, to direct a judgment which imposes upon the company the burden of maintaining its system, but deprives it of the right to enforce collections for its use, by enforcing its contracts with those enjoying the use of the system, by inhibiting it from disconnecting users who refuse to pay. This result is confiscation, pure and simple.
The city, through its police, had the physical power to, and did, enforce the fiat of its resolution. Against this force there was no recourse for the company unless it also violated the law, except to appeal to a court of equity. Courts of equity have no power to extend immunity to municipal dishonesty, nor can they recognize that a municipality can commit acts of lawlessness with impunity, or deprive owners of property of their rights therein, without due process of law. These plain and simple propositions have not only been violated by the judgment of the majority of this court, but thereby a premium has been placed upon municipal dishonesty, and in effect it is determined that rights may be acquired by municipal *153corporations through acts of lawlessness; that it may deprive owners of property of their rights without due process of law; and, in addition, there has been engrafted upon the jurisprudence of this state the proposition that “Might makes Eight.”
Let us see if there is any reason given in the opinion justifying such results. Facts are stated which are not material unless they are intended to justify the judgment .directed by this court. It is said that the quo loarrcmto action instituted in March, 1908, is still pending and undetermined, and that it is to be regretted that it was not disposed of at an early date. "Who is.responsible for this condition of affairs and delay? The presiding judge of the district court was disqualified because of his interest in the subject-matter of controversy. Tie arranged for a judge from another district to hear and determine the case. -It appears that in June, 1908, a time was fixed when an outside judge could be present. Counsel for the city, however, shortly before the date fixed, notified the judge of the district that it would not be convenient for him to take up the case at the time agreed upon, because of other matters to which he wished to devote his attention, although they were not of a professional character.
No attempt, however, will be made to notice or restate the many statements of fact in the opinion which have no bearing whatever on the vital question involved; neither will it be of any assistance to notice in detail the proposition assigned in support of the judgment directed, or the authorities cited in connection therewith which have no bearing on any question here presented for determination; but the judgment below, and the one directed here, will be tested by the facts established in the trial court under the issues made by the pleadings. These are the only sources which can be resorted to for the purpose *154of testing a judgment brought to this court for review.
As previously stated, the sewer company, by express permission, and with the acquiescence of the city authorities, laid its sewer system in the streets of the city, and from time to time extended it, and for twenty-two years operated it,' without any objection on the part of the city; that then the latter passed a resolution whereby it attempted to revoke' all permits and licenses granted the sewer company, inhibited it from making any excavations in the streets for any purpose, and undertook to decree that it should not be permitted to charge anyone for sewer service, and that upon the passage of this resolution, the city, through its mayor and members of the council, notified persons whose property was connected with the sewer not to pay the company any charges for its use, and that through its police 'force, it would prevent the company from disconnecting the laterals of users with the sewer mains, and would cause the arrest and imprisonment of anyone who undertook to excavate in the streets for the purpose of disconnecting those who refused to pay.
It is also an undisputed fact that when the sewer company did undertake to repair its system, it was prevented from doing so by the officers of the city, and that from that’ time forward the attitude and action of the city officials was such that the sewer company, by force, was ousted of all control and possession of its system.
These are the main facts alleged in the complaint filed by the sewer company, for the purpose of obtaining a judgment which would protect it in its rights. Let us see what defenses the city interposed to this action, as disclosed by its answer. It copied and made a part pf its answer the averments of the complaint in the quo warranto suit, wherein it was *155stated: “That on said third day of August, 1886, the city council of the said city of Leadville passed a resolution purporting to grant said permit, hut relators say that the said city council was without power or authority to grant said permit, and that the same was and is wholly void and of no force or effect. ’ ’
It then sets out the resolution passed by the city council in February, 1908, heretofore referred to, and admits that sewers were constructed by the company by virtue of the permission granted in August, 1886; but avers that because Such permit was beyond the authority of the city authorities to grant, “the said sewers and every part thereof as soon as constructed became, were and now are a part of the public highways, streets, alleys, public ways and places of the said City of Leadville, and as such became, were, and now are the property of the said City of Leadville and of the inhabitants thereof.” In other words, the claim is made boldly on behalf of the city, that although by its express permission it induced the sewer company to place its system in the streets and alleys of the city, the system became, as soon as constructed, the property of the city, because it had no authority to grant such permission. Its effect is to assert that a municipality can be dishonest, and may, in its transactions which are purely of a business nature, obtain property by false pretenses. If such a conclusion of law is deducible from the facts averred, and city officials can be found sufficiently dishonest to secure property for a city in this way, then a method has been pointed out whereby the municipalities of this state, by being dishonest, can secure public utilities to be placed in the streets without any expense to them, and when so placed, they become the property of the municipality.
*156Again it is averred, in the quo warrcmto complaint : ‘£ That the defendants have charged and collected from the inhabitants of the said City of Lead-ville, along whose property said sewer or the extensions run, the cost, or a great part of the cost of constructing and building said sewers and the extensions thereof, so that, in equity and good conscience, the said sewers and the extensions thereof belong now to the inhabitants of said the City of Leadville, freed from any burden of tolls or other charges to said defendants or either or any of them.”
• It is also alleged in the answer: ‘£ That the charges so made have been exorbitant and have many times over paid the cost of construction of said sewers, together with reasonable interest charges thereon, and the expense of maintaining and operating the same, and that the real owners of said sewers are the citizens whose property has been connected therewith, and who have made payment of the rate aforesaid.”
Further it is averred in the answer that because the returns from the investment of the sewer company have paid for the system, “that said sewers are public property, freed from any claim or demand from the plaintiff.”
In the prayer to the complaint in the quo warranto case it is asked “that it be declared that the sewers mentioned in the complaint and all and every thereof, whether specifically named or not, be, and the same are, the property of the City of Leadville, for the use and benefit of the inhabitants thereof, freed from any claim or demand of defendants, or any or either of them. ’ ’
“Equity and good conscience” is an elastic expression, and has often been applied in adjudicating the rights of parties, but so far as advised, this court is the first one to recognize that “in equity and good *157conscience” a party may be deprived of his property without dne process of law, and that “in equity and good conscience ’ ’ it may be confiscated. Such a doctrine means that if a merchant has been successful in building up a business, has made it profitable, and accumulated a large stock as the result of his efforts, so that the original capital invested has been returned, then, “in equity and good conscience” his stock can be confiscated. It means that the farmer who has taken a piece of wild land, cultivated and improved it, and thus' enhanced its value, and has, perhaps, received from crops raised and harvested much more than was originally invested, is liable, “in equity and good conscience” to have his property confiscated. In short, if the defense under consideration is good, the property of any successful business enterprise is subject to confiscation. True, it may not be plain as yet in whose favor the confiscation should be made in such circumstances, but if the doctrine once obtains that one who has made a success of his business by realizing returns in excess of the amount originally invested and perhaps has accumulated a fortune through .his efforts and business energy, is liable to have his property confiscated for this reason, it will not be difficult to invent a beneficiary to whom the property can be turned over.
The above are the facts and the issues presented to the court below and upon which the judgment of this court must be based, for there were no others presented to the trial court. It must be apparent, then, that the judgment here is predicated upon the ground that, because the city had no authority to grant the sewer company the right to occupy the streets of the city, and now . having repudiated its grant, it has become the owner- of the property which by its conduct it induced the sewer company to place in the streets; or it must be predicated upon the *158proposition that because the sewer company has realized returns from its investment sufficient to reimburse its original outlay, that, therefore, “'in equity and good conscience,” the property of the sewer company has now become the property of the city, or of those who paid tolls for the services rendered them. In short, the judgment directed by this court must be based upon the admitted dishonest action of the city or upon the theory of confiscation, as set up in the answer, or both, for no other defenses have been interposed. This is not conjecture. The opinion itself discloses that these defenses influenced the court in reaching the conclusion it has. They are noticed, and it is said, in effect, that an injunction should not be issued against a municipal corporation, except in actions .free from doubt, and then only in an extreme and exceptional case. So it is apparent' that the court must have reached the conclusion that by these defenses such a doubt was raised regarding, the rights of the sewer company as justified the order inhibiting it from disconnecting users, of the system who refused to pay; hut these defenses are not tenable. Should it be determined in the quo warranto action that the sewer company has no right to longer occupy the streets, because the city had no authority in the first instance to grant such right, or. that the right to occupy has expired, or if for any reason it should he determined that the sewer company had no right to longer occupy the streets, the physical structure would he the property of the company, without any right therein, either in the city or anyone else. That proposition needs no citation of authority to support it. No matter, then, what the outcome of the quo loarranto case may be, the physical structure will remain the property of the sewer company, and it is now the owner of it. Regarding this there cannot be the slightest doubt; and yet, in *159the face of the fact that this system is now the property of the sewer company, and must remain such until its title has been divested according to law, this court directs that it shall not be permitted to enforce its contracts by disconnecting those connected with the system who refuse to comply with their agreements ; imposes upon it the duty of keeping its system in repair, but,compels it to permit users who will not pay, or are irresponsible, to have the use of the system. In other words, compels the company to keep its system in repair, and operate it for the use of those who can not or will not pay for such use, until the rights of the parties are determined in the quo ivcirrcmto proceedings, although it is plain beyond the shadow of a doubt, that the physical structure of the system is now, and at the conclusion of the quo ivarranto proceedings, will still be, the property of the company. That such results deprive the sewer company of its property and property rights without due process of law is so plain that further discussion is unnecessary.
The remaining proposition,, which embraces the other defenses interposed by the city, to the effect that because the sewer company had realized from tolls a sum in excess of the original investment, that therefore its rights in the property had ceased, and that the system “in equity and good conscience” now belongs either to the city of Leadville or to the parlies who paid the tolls, is so absurd that it is not worthy of serious consideration.
It is evidently sought to avoid basing the judgment here directed altogether upon the issues made in the court below, by claiming that it is necessary to inhibit the sewer company from disconnecting users who refuse to pay, upon the ground that public health is involved, and would be endangered if those who refuse to pay had their property disconnected from *160the system. No such, issue was made in the court below. All that was said in the answer on that subject was “that to permit the plaintiff to disconnect such users of the sewer would result in the creation of a nuisance on account of the sewage thus undisposed of remaining upon the premises of such users. ’ ’ It was not claimed that the nuisance thus created could not be abated or would endanger public health. Neither was there any attempt on the part of the city to introduce any testimony on the subject. On the contrary, when the question of the advisability of a sewer system for Leadville at the time when the sewer company applied for permission to place its system in the streets was under discussion at the trial, the necessity for it was derided by counsel for the city. His efforts then were directed entirely to excluding evidence of the permits to the sewer company, and the introduction of testimony to prove the revenue derived from the system, presumably for the purpose of thus establishing that, the permission being without authority, the system was the property of the city, and that from the volume of revenue derived, it was subject to confiscation. No thought of raising any question on the score of public health was ever suggested until after the ease reached this court on appeal. Then, for the first time, counsel for the city, unquestionably realizing that under the issues made below the city had no^ standing whatever, sought to inject that question here by affidavits which the main opinion says have not been controverted. Since when has the practice obtained that an issue of fact going to the merits of a case not made below, can be injected after the case has been removed to this court on appeal, and tried in connection with the review of the case on the record from the trial court?
But, aside from these considerations, the claim *161is specious, and, unfortunately, the majority appear to have regarded it with favor, without realizing its speeiousness. In the first place, the owner of a sewer system, even in the interest of public health, cannot be deprived of his property without due process of law. But public health is not involved. If persons using the sewer are disconnected, the refuse which would have been carried off through the sewer will be lodged upon their premises, but it does not follow by any means that such lodgment will be anything more than temporary, or that refuse will remain upon premises to the detriment of the health of the inhabitants of the city. The city is clothed with ample power to compel persons disconnected from the sewer to keep their premises, and make provisions for keeping them, in a sanitary condition. Merely because citizens who may be disconnected must make some other provision for keeping their premises in a sanitary condition, or that it will be incumbent upon the city to compel them to do so, is no reason why the company should be compelled to take care of sewage for nothing. If the premises of those who may be disconnected are not kept in proper sanitary condition, it is because the city authorities are derelict in the discharge of their duties. Clearly, the contention on the part of the city that public health is involved is a mere subterfuge, because at most it only appears that citizens who- refuse to pay for sewer service, and by the- judgment of this court are awarded sewer service for nothing, at the expense of the company, will be compelled to incur some expense to keep their premises in a sanitary condition, and the city officials will have imposed upon them the labor, if they do their duty, of seeing that they do. This presents no reason why the company should have imposed upon it the burden of relieving the *162citizens and officials from the burden of discharging their duties.
There is still a potent reason why the city should not be permitted to interfere with the operation of the sewer system. It has no interest therein, either present or future. The contractual relations between the company and its patrons are purely private. The city is not a party to these contracts. It has no more authority to declare that the company should not be permitted to make charges for sewer service than it would have had- in an attempt to declare that the merchants of Leadville should furnish their wares to the inhabitants of the city free of charge, and for the purpose of enforcing such an order, had thereafter issued a notice to the effect that, through its officials, it would cause the arrest of any merchant who failed to obey its mandate. On the strength of the resolution it did pass, and its unlawful action thereafter, all of which were palpable wrongs, it has induced users of the system to refuse payment for sewer service which has necessitated the company, as one means of enforcing payment or protecting itself against irresponsible parties, to disconnect those in default. In other words, the commission of wrongs on the part of the city, by intruding itself into affairs where it had no business to intrude, has brought about- the necessity for action on the part of the company to protect itself, which the city now seeks to- prevent, and on the strength of which it demands that the company be required to furnish sewer service for nothing. The judgment of this court, in so far as it grants belief to the city, is for the purpose of preventing''cbnditions which the wrongful acts of the city are Responsible for. This is the first time in the history ¡of -the jurisprudence of this country, so far as the writer is advised, where, in effect, it has been declared by a court of last resort *163that the commission of a wrong creates a canse of action in favor of the wrong-doer.
■ Finally, the judgment directed appears to be based upon a desire to preserve the status quó. The status quo is the state of things at some particular date. It seems that the majority recognize the-stahis quo as existing at the time the quo warranto proceedings were commenced, which was after the resolution was adopted by the city council, thus giving force and effect to that resolution, by recognizing that at that time, by that unlawful action, a status quo was created which should now be continued. A condition through the medium of unlawful action and force cannot create a status quo which courts can recognize. The action of the city council gave it no legal rights, neither did it deprive the company of any rights in the subject-matter of controversy. The status quo was the condition which existed before the city officials undertook to deprive the company of the ownership, possession, and control of its property. The conditions as they existed prior to that time is what should be protected by injunction until the rights of the litigants are determined in the quo warranto proceedings. At that time the sewer company owned,. and now owns, the sewer system. Regarding that there can be no question; and the right of the company to control and operate it should be fully protected pending final judgment in the quo tuarranto case. The judgment directed, by this court deprives it of that protection. The judgment of the district court afforded it that protection, %a'nd should, therefore, if this court has the authority to review it, be affirmed. Under our practice, however, the proper order to enter is one dismissing the appeal.
One further criticism of the opinion is respectfully offered. It disclaims the intention of deter*164mining any question involved in the quo warranto proceeding, and yet it is said, in substance, that the city officials had no authority in the first instance, to grant the sewer company permission to disconnect users, and, therefore, it is not now estopped from refusing it that right.. Both of these questions should be determined in the quo warranto action, and not here.
Mr. Justice Campbell concurs in this opinion.