
    No. 805
    KIRK et al v. WELDY
    Ohio Appeals, 2nd District, Montgomery County
    No. 541.
    Decided July 25, 1923
    216. INJUNCTION.
    Injunction proper remedy in boundary dispu where defendant is not in possession of land — Court refusal to impanel jury in injunction case is not 'rroneous.
    Attorneys — I. L. Jacobson, for Kirk et al; Mc-ahon, Corwin & Landis, for Weldy.
   BY THE COURT.

Epitomized. Opinion

Weldy brought an action against Margaret and tVilliam Kirk to enjoin them from interfering with íer possession of Lot No. 20208- in the City of Day-on. Plaintiff alleged that the defendants were ibout to erect a garage on a portion of plaintiff’s ot and will trespass thereon, and as such trespasses rill be repeated and continuous, no adequate remedy rill exist at law. Plaintiff did not admit that the efendants were in possession of any part of the Dt referred to in the petition. As the court granted he injunction, the defendants prosecuted error. In ustaining the decision of the lower court, the. Court f Appeals held:

|^^As the defendant was not in possession, an in-Ktion is an appropriate remedy where there is a ispute as to a certain boundary.

2. As the undisputed evidence showed that" the iaintiff was the owner and entitled to the possession : real estate in question, no prejudicial error was immitted by the court’s refusal to impanel a jury, s> it would hav-e been the duty of the trial court to ke the case from the jury and instruct a verdict r the plaintiff under the facts of this case.  