Opinion
Decided December 12, 1927.
Injunction — Changes in highway causing overflow onto lands — Burden on plaintiff to establish allegations by sufficient proof, where answer general denial — Injunction lies only when injury incapable of compensation in damages — Diminution of property value, without irreparable mischief, insufficient — Relief denied where evidence discloses no injury of substantial nature.
1. In suit for injunction to prevent defendants from making certain changes in highway which would cause water to flow on plaintiffs' land, where defendants by answer denied all material allegations of petition of plaintiffs, burden of proof rested with plaintiffs to establish allegations in petition by sufficient proof.
2. Injunction which is summary and out of ordinary should never be granted, save and except in cases for prevention of great and irreparable injury or mischief, and injury must be so great as to be incapable of compensation in damages.
3. Mere diminution in value of property without irreparable mischief will not furnish foundation for injunction.
4. In suit for injunction, where plaintiffs alleged that defendants were about to change natural water course on road, thereby causing water to flow on land of plaintiffs, to their damage and injury, held that equity would not grant relief prayed for, where evidence did not disclose any injury to plaintiffs' land of a substantial nature.
APPEAL: Court of Appeals for Ashland county.
Mr. H.R. Smith and Mr. J.F. Henderson, for plaintiffs.
Mr. Clyde C. Sherick and Mr. H.E. Culbertson, for defendants.
This case is here on appeal from the common pleas court of Ashland county, and the ultimate relief prayed for by plaintiffs is for a permanent injunction against the defendants.
The issues as raised by the pleadings present the following question to be determined in this lawsuit by the court: Are the plaintiffs entitled to an injunction against the defendants preventing them from making certain changes in the public highway running through the premises of plaintiffs and certain of the defendants herein?
Plaintiffs in their petition aver and set forth that, by reason of certain acts and conduct on the part of defendants, they are about to and are changing the natural water course on said road; thereby causing the water to flow upon the lands of plaintiffs to their damage and irreparable injury.
The evidence in the case was presented to the court in the form of a transcript, being the same as was offered in the common pleas court. This evidence has been read and examined by the court. The defendants by answer have denied all of the material allegations of the petition of plaintiffs; it therefore follows that the burden of proof rests with the plaintiffs to satisfy a court of equity that the allegations and statements contained in their petition have been established by sufficient proof.
It must be borne in mind that the remedy invoked here is that of injunction, which is summary, and out of the ordinary, and should never be granted save and except in cases for the prevention of great and irreparable injury or mischief. Before an injunction should be granted, the injury must be so great as to be incapable of compensation in damages. If the injury be doubtful, eventual, or contingent, equity will not enjoin.
It may be further stated that mere diminution in value of property without irreparable mischief will not furnish a foundation for equitable relief, authorizing the granting of an injunction. The remedy by injunction being summary, peculiar, and extraordinary, ought not to be issued, except for the prevention of great and irreparable mischief.
The evidence in this case, giving to it its most favorable interpretation, does not disclose any injury to plaintiffs' land of a substantial nature. It is trifling in character, and, if any exists, is so little as not to appeal to a court of equity.
Before a court can legally issue an injunction the evidence must show that some wrong, injustice or an irreparable damage has been done for which the law provides no adequate remedy. Helmers v. McCarthy, 6 Ohio App. 423. One who seeks an injunction must show his right thereto by clear evidence. Reifsnyder v. Fertilizer Co., 9 Ohio App. 161.
The citation of other authorities with reference to the law involved in this case would seem to us to be out of place, because the rules of law governing courts of equity as to their rights in granting injunctive relief are so well settled that it seems unnecessary to discuss them at length.
The burden of proof rests with the plaintiffs. Their right to the issuance of an injunction must be established by affirmative proof on their part of such character as to satisfy a court of equity that the claimed injuries to them are permanent, of a substantial nature, and the injunction necessary for the protection of their property rights.
Under the facts here equity will not grant the relief prayed for in the petition of plaintiffs. Further, there is an utter failure of proof on the part of plaintiffs of facts necessary to warrant a court to grant the relief prayed for in the petition. Hence it follows that a decree should be entered in favor of the defendants, and the petition of plaintiffs be dismissed.
Petition dismissed.
SHIELDS and LEMERT, JJ., concur.