4 S.D. 102 | S.D. | 1893
This case was before this court at its last term, upon an appeal from an order of the circuit court granting a temporary injunction, restraining appellant from interfering with the property which was the subject of the action during the pendency of such action. A decision by this court was filed, sustaining the action of the trial court. It is reported in 54 N. W. Rep. 652. Appellant has presented a petition for rehearing on the ground that the decision heretofore filed does not dispose of the question of the title to the property in dispute, and that upon the trial of the main action on its merits that question will necessarily be involved, and that an expression of opinion, on this preliminary appeal, on the question of 'title, might be dicisive of the action on its merits. This is probably true, but, on the determination of the ultimate question of the rights of the parties in and to this waterworks property, there are a number of constituent questions, whose solution may depend, to some extent, upon evidence that may be offered upon the trial. While we may finally so conclude, we are not'now entirely clear that respondent’s rights in this waterworks property depend solely upon the construction of the two express provisions of the city charter referred to on the argument as defining the powers of the city. Certain kinds of property held by a city, it has power to sell; other kinds, it has not. The property involved in this dispute is described in the pleadings as a system of waterworks, constructed by the city of