Davis v. Connolly

46 S.W. 679, 104 Ky. 87, 1898 Ky. LEXIS 144

• Court: Court of Appeals of Kentucky
• Decided: June 10, 1898
• Status: Published

Opinion

JUDGE HAZELRIGG

delivered the opinion oe the court.

Where an injunction has been dissolved on final hearing, the plaintiff is entitled, under section 747 of the Civil Code, to move the trial court for an order continuing the order of injunction, notwithstanding the final order, pending the appeal. And the order on that motion, whether it be one granting the relief sought, or be a mere refusal to act, is subject to revision by this court on application, made as provided in said section. This was determined in case of King v. Tilford, 18 Ky. Law Rep., 978 [38 S. W. 888]. It appears in this casé that the appellant has been in continuous use, operation, and enjoyment of a ferry privilege on the Big Sandy river, at Pike-ville, Ky., for some eight or ten years. Whether she is the rightful owner of this right, as against appellees, we need not now inquire. Neither the county court, as grantor of the right, nor the public, is complaining; and we know of no reason why she may not, on behalf of the interests of the public, and as one in the actual use and enjoyment of the right for the benefit of the public, enjoin those who seek to violate the statute by erecting another ferry across her line, and within the distance from her line that is prohibited under our ferry law. At any rate, we think the status existing just prior to the final order dissolving the injunction and dismissing her' petition should be maintained pending a decision by this court, on the merits, of the appeal; and the injunction should be, and is hereby, temporarily continued for that purpose. It would seem that the injunction bond already executed is also continued, and affords ample protection to the appellees.