A petition for rehearing suggests that this Court in affirming the decree appealed from in this case apparently confused this proceeding with an earlier case between the same parties that was not appealed. This suggestion is not well taken.
The principal prayer of the bill in this case was also for a temporary injunction against the City of Jacksonville to restrain it from laying its pipes and furnishing water to inhabitants of North Brookside Subdivision. An additional prayer was for such other and further relief as would seem meet and equitable to the Court on final hearing.
There was a general motion to dismiss the whole bill. This motion was denied, as was also a motion to dissolve the temporary injunction that had been previously granted.
The appeal being from the single order which both denied the motion to dismiss the bill for want of equity and refused to dissolve the temporary injunction, we specifically dealt with and affirmed this one order by our previous opinion filed herein on December 6, 1932.
But we expressly declared in so doing, that the present bill afforded a basis upon which "the ultimate rights and interests of parties inter sese may be determined on final hearing," etc., although they could not be so decided on a mere motion to dismiss the bill, since the bill contained some equity and that rendered it good as against a general motion to dismiss for want of any equity. For that reason we expressly "affirmed and remanded" for further proceedings, the present controversy *Page 366 so far as its merits are concerned, as they may be developed on an appropriate answer to the bill, with supporting proof if necessary.
Where a bill in equity states an equitable basis for relief by injunction, as well as other matters of equitable cognizance connected therewith, an order overruling a general motion to dismiss the bill, being the equivalent of an order overruling a general demurrer to the bill, should be affirmed, and the cause remanded for further appropriate proceedings which will result in the determination of the substantial equities asserted at a full hearing on the merits of the cause. Warrington v. Williams,
The foregoing rule was the basis for our affirmance which expressly remanded the cause for further appropriate proceedings which will no doubt give the appellant a determination of the right it claims, but which we are unable to fairly and equitably decide upon the meagre record consisting only of the bill and motion now before us, however much we might desire to accede to appellant counsel's request that we do so.
The allegations of the bill of complaint which are admitted by the motion, are sufficient to warrant an injunction against the acts of the City complained of, unless the City defendant can justify its acts either under the power of eminent domain by making or securing payment for what is taken, or by justifying in law what it is attempting to do, as being authorized to be done by it, without any requirement of compensation being made by it.
Rehearing denied.
WHITFIELD, P.J., AND TERRELL AND DAVIS, J.J., concur.
BUFORD, C.J., AND ELLIS, J., concur in the opinion and judgment. *Page 367
