Washington Water Co. v. Parrett

9 F.2d 915, 4 Ohio Law. Abs. 477, 1926 U.S. App. LEXIS 2384

Opinion

PER CURIAM.

It is clearly evident from the record in this ease that the removal of this dam would entail a heavy loss upon the appellant, wholly disproportionate to the damage that would be caused to plaintiff’s land, which the trial court found ■’yould be appreciable, though slight. The trial court gave no directions as to how this dam should be altered, nor does it otherwise appear that any reasonable alteration thereof, less than its complete destruction, would prevent this slight damage to plaintiff’s property. For this reason this court is of the opinion that it would be wholly inequitable to require the destruction of this dam, because of the slight damage to plaintiff’s land, for which he may be fully reimbursed in damages.

For this reason, the decree of the District Court is vacated, and cause remanded, with directions to the District Court to proceed to ascertain and assess the damages, and that, unless said damages be paid by a time fixed by the court, a mandatory injunction shall issue in accordance with the decree from which this appeal is taken, or, if the plaintiffs should so elect, that the ease be transferred to the law side of the court for the ascertainment of damages, as in an action at law.