dissenting:
Upon the original hearing my concurrence in the dissent'of Mr. Justice G-abbert was announced. In disposing of the petition for rehearing, in order to make clear my position as to this controversy, the following observations are submitted: To my mind it has been conclusively demonstrated, by the dissenting opinion, that the judgment or order sought to be reviewed is purely interlocutory. In no sense is it now final, whatever it may become hereafter. For this reason alone, the appeal should be dismissed.
There is another and equally conclusive reason therefor. The pending action is equitable in its nature. Disregarding superfluous and immaterial allegations therein, the complaint and the other pleadings show the sole object of plaintiff company was to obtain, and the only relief .granted was, an injunction to preserve the status quo of the sewer system, ownership of which it claimed and the right to operate which it asserted, while defendant city denied that plaintiff had any license or franchise or right whatever, either of ownership or operation, and proposed, by superior physical force, if necessary, to enforce its contention. These legal rights of the parties could, under the established practice in this *165state, be determined only by a proceeding in the nature of qtto warranto. Such a proceeding, with that object in view, had been instituted by the district attorney, upon the relation of the mayor of Lead-ville, and was then pending in the district court of Lake county. Notwithstanding the pendency of that action undetermined, the city council, as stated, resolved, and proposed by force, if necessary, through its police department, to take possession and control of the sewer system and exclude the sewer company from it. Such being the situation — it being necessarily assumed by the city in causing this action to be begun that there was a substantial controversy between the parties over property rights — the sewer company brought this equitable suit to restrain the city, during the pendency of the-gmi ivarranto action,from interfering with its possession and operation of the system. It would seem to any fair-minded person, to the lay as well as to the legal mind, that it was the duty of a court of equity to protect a litigant in its claimed right of property, which for many years had been recognized and acquiesced in by the city, until, in the legal action, a court of competent jurisdiction determined that plaintiff had no rights, or had lost those which it once had. The legal rights of the litigants ought not to be discussed, or inquired into, on this review, except only in so far as necessary to ascertain if there was a substantial controversy over property rights, and, it would seem, they have not been expressly passed upon by a majority of the court. Speaking for myself and also Mr. Justice Gfabbert, it is fitting to say that they would not have been considered by us, had not the opinion of Mr. Justice Hill, which we then thought was to be the opinion of the majority, though disclaiming an intention to pass upon them, proceeded with their discussion and an announcement of his opinion on at least *166some of the important questions involved in the quo warranto action.
Announced Dec. 6, A. D. 1909; rehearing denied March 7, A. D. 1910.I agree with Mr. Justice "White and Mr. Justice Bailey that these legal rights ought not to he, and cannot he, in accordance with our fixed practice, determined in this equitable action; but I dissent from their conclusion and from that of the other members of the court, whose views are set forth in the opinion of Mr. Justice Hill, in modifying the injunction. So far as my investigation has gone, it is an unprecedented thing to allow an issue, not raised or decided below, to be presented for the first time on review, as, in this cause, the question of public health, when there has been no opportunity for the trial court to pass, or for the parties to be heard upon it, and for an appellate court on final hearing to predicate its ruling thereon. Without prolonging the opinion, it is enough to say that, in my judgment, upon the clearest and plainest equitable principles, this appeal should be dismissed and the judgment of the district court left standing exactly as it was pronounced.