Cincinnati v. Kirk , 4 Ohio Law. Abs. 270 ( 1925 )

HAMILTON, J.

Theo, Kirk and Margaret Kirk brought this action to recover damages caused by the City of Cincinnati in permitting the discharge of sewage into a creek running through the lands of the Kirks. The cause was tried to a jury in the Hamilton Common Pleas and the jury found for the Kirks in the amount of $5000.

The City prosecuted error in that the evidence showed that the land through which the creek ran was not owned by the Kirks during the entire period for which damages were asked and recovered. The Court of Appeals held:

1. Recovery of damages to lower riparian owners may be recovered only for such period of time as such owners have the property in their possession.

2. In view of the evidence showing that the Kirks did not have this land in their possession for the entire period fo.r which damages were assessed, a remititur of $312.50 is ordered and judgment affirmed.

Judgment as modified affirmed.