delivered the following as the opinion of the court:

The court is of opinion, that the verdicts recovered by the appellee against the appellant for keeping his dam, in the proceedings mentioned, too high, serve to shew that he had at least a prescriptive right to keep the same at some height; and therefore that if it was competent for a court of equity to interpose at all, to enforce the alleged forfeiture of such right, by reason of the appellant’s alleged failure to reconstruct his dam (after it had been swept away) within the time prescribed by law, it ought not to have been done by *506way of injunction, without an allegation in the bill of distinct and sufficient ground of irreparable mischief, instead of a general and indefinite suggestion of such mischief. And the court is further of opinion, that the said verdicts against the appellant for keeping his dam beyond the authorized height did not warrant an injunction to restrain him from reconstructing it at all, or even from reconstructing it beyond the authorized height, in the absence of any allegation in the bill that he was about to reconstruct it, or had threatened to reconstruct it, beyond such authorized height. The court is therefore of opinion, that the circuit court erred in refusing to dissolve the injunction which had been granted to the appellee, inasmuch as the same was improvidently granted. It is therefore considered that the order of the said circuit court overruling the appellant’s motion to dissolve said injunction be reversed and annulled, and that the appellant recover against the appellee his costs by him expended in the prosecution of his appeal here.' And this court proceeding to make such order as the said circuit court ought to have made, it is further considered that the said injunction be dissolved. Which is ordered to be certified to the said circuit court.