delivered the opinion of the court:
The parties are substantially the same as those who were before this court in Peterson et al. v. Yacktman, 25 Ill App2d 208, 166 NE2d 452. In the instant case there is an additional party, Domestic Utility Services Company, a water utility operated by Yacktman. Following the denial by the Supreme Court of leave to appeal from the judgment of this court in the earlier case, the judgments were paid. The parties mutually canceled the prior agreements which consisted of a “subscription agreement for water services” and an “agreement for water supply.” Thereupon, defendants notified plaintiffs of their intention to discontinue water service. Plaintiffs immediately filed a complaint (October 10, 1960) for injunction to restrain the discontinuance of the service. Plaintiffs moved for an immediate temporary injunction. The motion was entered and continued upon the agreement that the water service would be restored on a temporary basis under the same conditions as had existed prior to the denial of leave to appeal, without prejudice to the rights of any party. It was further agreed that the service would not be discontinued without due notice to the plaintiffs and the court.
The defendants in their answer stated that the plaintiffs are estopped to present their claim by reason of their earlier recovery upon the theory that Yacktman defrauded them by falsely pretending that he operated a water utility, so that the two complaints are totally inconsistent. Defendants also stated that granting the plaintiffs the relief sought would be a detriment to all other utility customers because the cost of providing service to the plaintiffs was in excess of the cost of service to the other customers. Defendants further stated that the plaintiffs had been receiving water in their homes for more than twenty years prior to subscribing to the defendant’s service and that other sources of water, geographically closer than the defendants’ supply, were available to the plaintiffs. Plaintiffs filed a motion to strike defendants’ answer, or in the alternative, certain paragraphs thereof, on the ground that it sought to relitigate issues determined in the prior case, and that it contained irrelevant, scandalous and immaterial matter. The motion was not disposed of at the time of this appeal. Subsequent to the filing of their answer defendants moved to dismiss the complaint on the ground that the “maximum relief to which plaintiffs could have been entitled would have been a sufficient period of time to apply to the Commerce Commission for relief”; and that plaintiffs had not initiated any proceeding before the Commerce Commission. This motion was denied. All other pending motions were set for hearing on April 7, 1961, at which time the case had been pending for almost six months. Throughout that period water service had been furnished the plaintiffs and no notice of any intent to discontinue that service had been given. After hearing arguments of counsel the court on April 7, 1961 entered an order for a temporary injunction. The order made findings of fact in accordance with the allegations of plaintiff’s complaint, even where controverted by the answer. No evidence was heard. The defendants were enjoined from taking any steps to discontinue the water service to the plaintiffs. Defendants prosecute this appeal.
On the day the complaint was filed the defendants restored the water service. This was done pursuant to the agreement made in open court to restore and continue the service unless due notice he given plaintiffs and the court. At the hearing the attorneys for plaintiffs stated that the agreement had been observed. At the time of the injunctive order service had been furnished under the agreement for a period of six months. There was no need for an injunction to preserve the status quo. Should the defendants threaten to discontinue the water service, plaintiffs could present a supplemental complaint and the chancellor would have an opportunity to decide whether to grant a temporary injunction. Ordinarily, a temporary injunction is granted as a matter of emergency. The court should exercise caution in granting injunctions. In Hinson v. Ralston, 100 Ill App 214, the court said (219): “Injunctions are not granted because they will do no harm.” An otherwise proper request for an injunction will not be defeated by defendant’s assurance to the court that he will no longer give cause for its issuance. This is not what happened here. In the case at bar plaintiffs moved for an injunction and settled for an agreed order.
The chancellor expressed doubt as to jurisdiction over the matters in controversy in the instant case. Some of the eases relied upon by the plaintiffs relate to utilities operated by municipalities or other subdivisions of the State. Section 10.3 of the Public Utilities Act excludes these utilities from the operation of the Act. These cases would not be helpful. Under that Act the courts do not have the power to require a utility to extend its service on a permanent basis or to prescribe the rate of service or the terms and conditions thereof. These are matters cognizable only by the Commerce Commission, and the court is not concerned with them save on administrative review. The prayer for a temporary injunction is only incidental to the permanent relief sought by the complaint.
The writer of this opinion, consistent with the views expressed in his dissent in the previous case, agrees with the contention of the defendants that the plaintiffs are estopped from urging their position in the present complaint by reason of their contrary position in the earlier litigation. The writer is also of the opinion that the plaintiffs do not present a case for equitable relief. See Biehn v. Tess, 340 Ill App 140, 145, 91 NE2d 160. Therefore the order of April 7, 1961, is reversed.
Order reversed.