Allen

Defendants appeal from a judgment for plaintiff granting a mandatory injunction compelling defendants to remove certain dams erected by defendants which caused the flow of water to be diverted from its natural course unto plaintiff’s land. The bill of exceptions does not pretend to bring up all the evidence, but, as stated in appellants’ brief, ■“is intended only to present two questions of law adopted •by the court and applied to the case.” These questions are: 1. Will the remedy of mandatory injunction lie where the •evidence is conflicting on the point at issue, unless there first be a verdict of a jury or decision of the court finding that actual—at least nominal—damages have been awarded plaintiff? 2. Did the court err in its ruling that defendants had no right to build the obstruction for the purpose of correcting a mistake of the railroad company in locating its culverts? It appears from the findings of the court that plaintiff’s land is planted to orange-trees in full bearing. Prior to the commencement of the action, and when defendants commenced the construction of the dams complained of, “plaintiff demanded of them that they desist and cease from said work and protested…