Zweigart v. C. & O. R. Co.
| Decision Date | 08 December 1914 |
| Parties | Zweigart v. Chesapeake & Ohio Railway Company. |
| Court | Kentucky Court of Appeals |
Appeal from Mason Circuit Court.
ALLAN D. COLE for appellant.
WORTHINGTON, COCHRAN & BROWNING for appellee.
In the year 1887, the Maysville & Big Sandy Railroad Company condemned a right of way through the property of defendant, C. F. Zweigart. This property is located a short distance west of the city of Maysville. Thereafter plaintiff, the Chesapeake & Ohio Railway Company, acquired all the property and franchises of the Maysville & Big Sandy Railroad Company, including the ground condemned. On the north side of the right of way defendant maintains a slaughter house. Defendant has a private passway extending from his slaughter house across the railroad tracks to the public highway on the south side of the tracks. The defendant caused two warrants to be issued against plaintiff, one in the justice's court and one in the Mason Quarterly Court, charging plaintiff with obstructing the passway. The prosecutions were instituted under Section 4354, Kentucky Statutes, which is as follows:
"Any person who shall put any obstructions in a passway, or shall prop open, pull down, injure, or leave open a gate erected across the same, shall be liable to a fine of ten dollars, recoverable by warrant in the name of the Commonwealth, the fine to be laid out in repairing the passway or gate."
On the trial of the warrant in the Mason Quarterly Court plaintiff was fined $10.
Alleging the issuance of the above warrants, and the fact that the defendant, unless restrained by order of court, would cause numerous other warrants to issue against plaintiff, and that such proceedings constituted a cloud on plaintiff's title and would seriously interfere with its right to use and control its property, and that there is no appeal from any judgment that might be rendered against it under the warrants that issued, or which the defendant was threatening to issue, plaintiff brought this action to enjoin the defendant from further prosecuting the warrants, and for the purpose of quieting its title to its right of way. The defendant filed an answer, pleading, in substance, that plaintiff was destroying his passway by frequently obstructing it and stopping its trains thereon for an unreasonable length of time. On final hearing, the chancellor granted plaintiff the relief sought, and defendant appeals.
While ordinarily, of course, an injunction will not lie to restrain criminal proceedings, yet, where, as in this case, plaintiff's property right is...
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