Opinion
June 19, 1945. As Modified on Denial of Rehearing October 16, 1945.
Appeal from Laurel Circuit Court.
Wm. A. Hamm, Special Judge.
C.R. Luker for appellants.
S.V. Little for appellee.
Affirming.
Appellants filed the action against appellee, in an endeavor to enjoin him from continuing to use a roadway through 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 passway, 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.