
    City of Jacksonville, a Municipal Corporation, Appellant, v. A. S. Broward, et al., Appellees.
    
    146 So. 671.
    Opinion filed March 13, 1933
    
      
      Austin Miller and Emmet Safety, for Appellant;
    
      Bedell & Bedell and Cockrell & Cockrell, for Appellees.
   Per Curiam

The City of Jacksonville brought suit against A. S. Broward and others to enjoin actions at law against the city and to determine and decree the location, content and ownership of “Lot ‘N’ of the Subdivision of the J. Fenwick and S. Wilson Grants in Sections 44, 45 and 47, in Township 1, South, Ranges 26 and 27, as shown by the letter ‘N’ on plat of said Subdivision recorded in Plat Book 1, Page 8 of the former public records of Duval County, Florida,” etc.

It appears from the allegations and exhibits of the bill of complaint that the plat referred to delineates lots numbered A to N inclusive, each lot containing stated dimensions, lot N being shown as extending from lot M as shown on the plat, west to the range line between ranges 26 and 27 East; that the land content stated on each lot as' shown by the plats, is in the aggregate less than the actual measurement on the ground of the land represented by the plat as lying between the eastern line of lot A and the western line of lot N. This leaves a surplus of land in the area which the plat purports to cover and which the city in its bill of complaint in effect alleges should be apportioned to the several lots so that the city, as owner of lot N, would have decreed to it the proper proportionate area extending East from the said range line. The defendants by- answer in effect claim that the surplus exists as unplatted lands of the owners when the plat was made, lying between the true western line of lot N and the range line. Thus both parties' assert the inaccuracy of the plat; and each seeks a construction of the plat in connection with the conveyances referring to the plat and with other evidence that may be considered under the pleadings.

The court below overruled the complainant’s motions to strike and demurrers addressed to answers of the defendants, with leave to the complainant to reply as advised. Complainant appealed.

As' the averments of the answers that are admitted by the demurrers and motion to strike, make issues that should be determined upon a consideration of evidentiary matters not concluded as matter of law by the pleadings as they now stand, the order appealed from will be affirmed without a detailed discussion of the errors assigned, and the cause will be remanded for further appropriate proceedings)

It is so ordered.

Davis, C. J., and Whitfield, Terrell and Brown, J. J., concur.

Buford, J.

(dissenting). — I think the pleadings present a justiciable question is whether the acreage in area remains vested in the heirs of John Broward or has passed to their successors in title to be prorated according to value or otherwise between the lots' constituting the whole area shown on the plat as involved in the partition, which question could be now determined and probably would terminate the litigation.  