
    No. 647
    FRANK TEA & SPICE CO. v. SCHREIBER & SONS CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2702.
    Decided Dec. 28, 1925
    355. DAMAGES — No money damages allowed when sewage in abandoned sewer backed into plaintiff’s basement in a small proportion to the water claimed to have been pumped out, as damages are impossible to estimate.
    1091. SEWERS — Use of such sewer is in contravention of sanitary code and defendant restrained from further use.
    Attorneys — Harmon, Colston, Goldsmith & Hoadly for Tea Co.; Murray Seasongood, W. J. Overbeck & George H. Kattenhorn for Schreiber Sons & Co.; all of Cincinnati.
   CUSHING, J.

The Frank Tea & Spice Co. prosecuted this action to restrain the L. Schreiber & Sons Co. from discharging water and sewage from its property into Deer Creek Sewer; and for damages growing out of a block thereof, which caused water and sewage to flow into its building.

It seems that about 1840, property owners and the city of Cincinnati constructed this drain;.but its use had been practically abandoned. It was never made part of the sewer system of the city; and was used to carry all surface water from a number of streets. Schreiber Sons & Co. have been using it to carry water and sanitary sewage from its property.

The sewer caved in and water and sewage backed up into the Spice Company’s property so that it was compelled to install pumps to pump the water from its basement.

The Court of Appeals on appeal held:

1. No money damages will be allowed as the amount of water claimed to have been pumped out was in such a large proportion to the amount which actually flowed from defendant’s property that it is impossible to estimate the amount of damages.
2. The sewer was not constructed for any purpose other than to take the place of a natural stream, and defendant is given no authority to use said sewer as was used by it.
3. Its use was in direct contravention of the statutes constituting the Sanitary Code.
4. The prayer for money damages is denied but plaintiff is entitled to equitable relief restraining defendant from discharging sewage into said sewer.

Decree accordingly.  