
    No. 527
    LAMBRIGHT et v. EAST PALESTINE (City)
    No. 19810.
    Supreme Court
    On motion to certify.
    Dock. May 7, 1926.
    1049. RIPARIAN RIGHTS — 1. May a riparian owner enjoin a municipality from polluting a natural water course, resulting from an inadequate disposal plant for refuse, where such pollution damages his property?
    1235. VERDICT — Is it error for the court to render judgment on a verdict when the jury mistakes evidence of other contributing causes as a complete defense instead of merely in mitigation of damages?
    Attorneys — K. L. Cobourn, Salem, for Lam-bright; J. E. Banknecht, East Palestine, for City.
   Claude and Sarah Lambright brought this ■action originally in Columbiana Common Pleas against the City of East Palestine to obtain an injunction against the city from polluting a natural stream upon which they were riparian owners.

It appears that the disposal plant maintained by the city was inadequate and that as a result the waters of what is known as Leslie’s Run were polluted thereby causing obnoxious odors and a deposit of filth on the plaintiffs’ property.

At the trial Lambright offered the testimony of 22 witnesses concerning the nuisance and the city offered some evidence of pollution from other sources and some expert testimony to the effect that the sewage would purify itself by flowing in the sunlight.

It is alleged in the brief filed by Lambright herein that the jury mistook the evidence as a complete defense instead of evidence to mitigate damages.

The judgment of the Common Pleas refusing the injunction was affirmed by the Appeals.

Lambright in the Supreme Court contends:

1.That there is no- evidence to justify a finding that no nuisance existed.

2. That they are as .a matter of right entitled to damages and injunction against the continuance of the nuisance complained of.  