
    REMEDY AGAINST IMPROPER STRUCTURE ON ONE’S OWN LAND.
    [Circuit Court of Hamilton County.]
    Adolph W. Rauch v. The Bruckmann Brewing Company.
    Decided, February. 3, 1906.
    
      Injunction — Against Building of Unsubstantial Wall — Action not of Equitable Character, When.
    
    1. A mandatory injunction will not issue to compel the erection of a structure of a specific character.
    2. Where equitable grounds for an injunction are lacking, the court can not proceed to award damages which it is averred arose on the equitable action.
    Swing, J.; Jelke, P. J., and Giffen, J., concur.
    
      Ream & Ream, for plaintiff.
    
      L. W. Ooss, contra.
   This is an action in equity seeking to enjoin the maintenance of a wall on plaintiff’s property and to compel the defendant to erect a proper wall in the place of the present one.

The court could not grant the prayer of the petition to erect the wall asked for, for the reason that it is not the province of the court to issue mandatory injunctions of this character.

The court can, however, enjoin the defendant from maintaining the wall on the plaintiff’s premises; but the evidence discloses the fact that plaintiff consented to the building of the wall on his premises, and saw the wall while it was being erected and made no objection to its erection, and in fact now makes no objection to its location, provided the wrall is made in a more substantial manner, and in a manner to better protect his own property. It follows from this that there is no equitable ground for an injunction, and this being true, the petition must be dismissed, for if there is no existing equitable action, the court can not proceed to award damages, which damages the petition alleges arose on the equitable action. The action could be brought for damages, either on contract or tort, and there is no claim of that kind here.

This action will be dismissed without prejudice to such an action.  