Erkenbrecher v. Este

1 Cin. Sup. Ct. Rep. 368

• Court: Ohio Superior Court, Cincinnati
• Decided: April 15, 1871
• Status: Published

Opinion

Hagans, J.

The pleadings have been substantially stated, so that the points presented by the various motions and demurrers might the more readily be seen.

We do not understand that there is really anything involved in this litigation but the bare right of navigation of the basin referred to. There seems to be no complaint in other respects. Upon the admissions of the demurrers, there arises very many questions. Among them these:

Had not the Bank of the Hnited Statess previously conveyed to the State of Ohio the basin as a water-way and adjunct to the navigation of the canal, so that this subsequent conveyance to Williams passed nothing to him in respect of that navigation different from the epjoyment thereof by the public at large ?

Is the right of the plaintiff to navigate the basin in common with other abutting property owners, if any exist, appurtenant to his lot as an easement, and if so, has it been lost by non-user and lapse of time ?

And, finally, is the plaintiff1, upon the pleadings as before us, likely to sustain any irreparable injury by the proposed action of the defendants, which furnishes sufficient ground for the equitable interference of the court by way of injunction ?

If this last question be answered in the negative, there ■ would seem to be no necessity of inquiring any further.

By the admissions of the demurrers, it is apparent that no injury will accrue to the plaintiff’s alleged right to navigate the basin, by reason of anything which it is sought to enjoin. The exercise of the right of navigation had long before been effectually prevented by the acts of others, for which neither the defendants nor their grantors are responsible.

It is very clear to us that, so far as the city is concerned, the plaintiff has an adequate remedy in damages in a civil action, if he have a right to maintain it, for a breach of an alleged contract at the time of the plat and dedication made by the Bank of the United States, or for a trespass, and it would seem that the damages, in either case, would ' be at most but nominal.

And we see no good reason why the same thing may not be said of the other defendants. By the pleadings,, it appears that the substantial injury had all been done to the plaintiff', if any, before the action was brought. And if it be true, as we think it is, that the damages which the plaintiff would sustain, would only be nominal, that alone would notfurnish sufficient ground for equitable interference. The injury which the party apprehends should be real. Watrous v. Rogers, 16 Texas, 410; Campbell v. Scott, 11 Sim. 39; McCord, etc. v. Iker, 12 Ohio, 387; Angell on Water-courses, sec. 444, p. 620; Haight v. Morris Aqueduct, 4 Wash. C. C. 601.

Besides, we are not satisfied that the plaintiff’s right is clearly defined and established. If there be such a right as the plaintiff' claims, the case made by the plaintiff seems to us to be damnum absque injuria. In either case, we think that the remedy of inj unction is unwarranted.

This view of this case renders it unnecessary to discuss the cases cited by the plaintiff’s counsel at the argument.

The motion to strike out and the demurrers will be overruled.