City of Jacksonville v. Shaffer Et Ux. , 107 Fla. 363 ( 1932 )

This is an appeal in chancery from an order of the Circuit Court of Duval County denying a motion to dismiss appellees' bill of complaint seeking an injunction against the City of Jacksonville to restrain it from laying water mains in the streets and alleys of North Brookside Subdivision and supplying the residents thereof with water without first making just compensation to the appellees for their rights reserved to them as shown upon the plat of said subdivision.

The plat, as recorded by the subdividers before the subdivision was included within the territorial limits of the City of Jacksonville, contained conditions and reservations on its face which read as follows:

" 'The fee in the streets and alleys shown upon this plat of North Brookside Subdivision, are hereby reserved to P. F. Shaffer, Mary E. Shaffer, his wife, G. E. Pickard and Margaret B. Long and their assigns and only an easement for the benefit of the public and purchasers by reference to this plat is hereby granted, and the right to lay railroad or street railway tracks, and all other public utilities, or any of them, is not granted, but is expressly reserved, and this shall not be deemed a public dedication except upon the condition herein imposed.' "

We have recently considered the legal effect of such reservation in a companion case to this. See City of Jacksonville v. Shaffer, decided at the present term.

It is evident from what we held in the companion case that the City of Jacksonville was without any right to do the acts sought to be enjoined in this case, without first making or securing just compensation for the property rights taken from those who had made the reservation set forth on the above mentioned plat.

Therefore there was some equity in the bill in the present case, insofar as it sought to preserve the status quo, and the motion to dismiss was properly denied by the Chancellor on the authority of City of Jacksonville v. Giller, 102 Fla. 92, 135 Sou. Rep. 549.

The ultimate rights and interests of the parties inter sese may be determined on the final hearing upon appropriate allegations in the pleadings with such supporting proofs as the issues made may require.

Affirmed and remanded for further proceedings.

WHITFIELD, P.J., AND TERRELL, J., concur.

BUFORD, C.J., concurs in the opinion and judgment.

Filed under Rule 21 A.

ON PETITION FOR REHEARING.