(concurring specially).
I am of the view that further facts should be disclosed then are set forth in the majority opinion.
The trial court’s judgment, which is on appeal in Case No. 46,210, is premised on *267the theory that when the municipality annexed the property, it took it subject to all conditions then existing.
It appears from the trial court’s Journal Entry of Judgment in Case No. 46,210, that prior to the annexation “plaintiff’s predecessor in title had built a shopping center on the property, including the construction of buildings, the principal building being seven (7) separate commercial units, suitable for storage and shops. These structures are presently on the property and are presently either vacant, awaiting rental to prospective tenants, or used by tenants in carrying on business enterprises.” Also, the trial court found the municipality’s ordinance “ * * * purports to limit the plaintiff in its use of its property by prescribing that the plaintiff’s property may not be rented to any tenant, other than those occupying the property at the time the ordinance was passed, and preventing the plaintiff from making any improvement on its property and permitting only upkeep of the property.”
The trial court ordered that plaintiff’s property remain in the same zoning status as it was immediately prior to the annexation; and that the municipality continue to furnish services.
On hearing the motion for new trial the trial court said that plaintiff may continue to occupy the premises for use in the operation of any lawful business, and may make necessary repairs so that the premises will be suitable for occupancy by tenants ; “ * * * provided, however, that plaintiff may not further improve the premises by erecting any further structure or by modifying the present structure to add any additional rental area. However, plaintiff, would be entitled to make interior modifications of the rental area to suit prospective tenants, such as the erection or tearing down of partitions, the erection of lighting, * * * ”, etc.
As I view it, the issue presented in this original proceeding is not whether the trial court’s judgment, which is on appeal in Case No. 46,210 is correct, but whether the effectiveness of that judgment should be stayed pending the .determination of that case on appeal.
In Orange County Water District v. City of Riverside, 154 Cal.App.2d 345, 316 P.2d 43, the California Court'said that it is well settled that an injunction mandatory in character is automatically stayed on appeal and that a prohibitory injunction is not so stayed.
If, in the case at bar, the trial court’s judgment had required the municipality to construct new facilities or extend its present facilities, I am of the view that it would be mandatory in nature, as distinguished from prohibitory, and we should stay the effectiveness of the trial court’s judgment in that regard until final disposition is made in Case No. 46,210.
However, if I correctly understand the record, the municipality was furnishing the services to the property prior to annexation, and the trial court ordered it to continue to furnish those services. Also, it will not be necessary for the municipality to construct new facilities or extend its present facilities in order to comply with the trial court’s judgment.
In my opinion, the trial court’s judgment is not mandatory in nature, but it merely left the parties in status quo, pending determination of the case on appeal.
I concur specially in the views expressed by a majority of my associates.
I am authorized to state that Mr. Justice LAVENDER concurs in the views herein expressed.