
    J. J. Bondurant v. N. C. & St. L. R. Co.
    [Abstract Kentucky Law Reporter, Vol. 7—101.]
    Injunctive Relief.
    Where in an effort to enjoin a railroad company from building its line of road in front of plaintiff’s business house on the ground of irreparable injury to the business in which he is engaged by reason of the proximity of the track, and no question is raised as to ownership of the street and the council has granted a right to the company to lay its tracks in the street, the injunction will be dissolved where the allegations in the petition for injunction are denied and no proof is made to sustain them.
    APPEAL FROM FULTON CIRCUIT COURT.
    May 16, 1885.
   Opinion by

Judge Pryor:

This is an action seeking an injunction preventing the appellee from constructing its road in front of appellants business home, on the ground of irreparable injury to the business in which they are engaged, by reason of the proximity of the track to the building.

There is no question raised as to the right of property in the street except such as is common to every citizen of the town, and with an admission that authority had been given the city council to grant the right of way, the presumption will not be indulged that the owners of the building bordering on the street are the owners of the fee over which the street passes, or that they own to the center or middle of the highway, and certainly no presumption ought to be indulged when the appellants are not seeking indemnity for that reason or asking the chancellor to interfere on any such ground.

The title to these streets may be vested in the city, and the contrary will not be presumed in favor of a party who is seeking to prevent an injury, not to his freehold, but by reason, as is alleged that the extension of the road will prevent wagons from loading and unloading in front of their business house on that street, besides interfering with public and private travel.

All the allegations of the petition are denied and no proof to sustain them, and nothing remained to be done by the court after a submission on the pleadings but to dissolve the injunction and dismiss the petition. The question as to the invasion of the right of property made by counsel does not arise, and there is no necessity therefore for determining it.

Wooley & Buckner, J. & J. W. Rodman, for appellant.

H. A. & R. T. Tyler, C. H. Randle, for appellee.

Judgment affirmed.  