Mathews v. Hale

189 S.W.2d 524, 300 Ky. 612, 1945 Ky. LEXIS 564

Opinion

Opinion op the Court by

Van Sant, Commissioner

Affirming.

Appellants filed the action against appellee, in an endeavor to enjoin Mm. from continuing to use á roadway tMougli their farm in Laurel County. The regular Judge of the Laurel Circuit Court granted a temporary injunction, which was dissolved by Judge Cammack, in concurrence with three other Judges of this Court. On return of the-case, additional evidence was introduced by both parties and the cause submitted, by agreement, to a special Judge, who denied the injunction and dismissed the petition.

There is but one issue, and that is one of fact, viz., whether the passway in question is-public-or private in its character. We have read carefully all of the evidence contained in the record. Appellants introduced several witnesses who testified that the road is a private pass-way, or to facts from which an inference to that effect reasonably may be drawn. Appellee introduced several witnesses who testified that the road is a public passway, or to facts from which an inference to that effect reasonably may be drawn. The evidence obviously is conflicting. This Court will not disturb the finding of fact of a chancellor on conflicting testimony, unless it is clearly against the weight of the evidence, which it is not in this case. Lipps et al. v. Marcum, 297 Ky. 225, 179 S. W. 2d 884.

Judgment affirmed.