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aid maintain trespass or trover against a trespasser who removed trees, &c. ; and such
tions could be maintained by an owner having constructive possession of land (note,
te, page 103) : and it seems, a fortiori, that, independently of any statute, a reversioner
constructive possessor of land could maintain an action to prevent the cutting of trees,
., by insolvent trespassers; and, yet more clear, if possible, that such action could be
lintained by an equitable owner of land, who could not maintain an action of either
ispass, trover, or case; and, consequently, that the provision of the act of 1888, as to
eventive remedies, was unnecessary; or, at. any rate, would have been so, but for the
turn in Hillman v. Hurley. See the next following note.

3. Waste.

"The distinction between waste and trespass consists in the former being the abuse or
t destructive use of property by one who, while not possessed of absolute title thereto,
s yet a right to its legitimate use: trespass being an injury to property by one who has

right whatever to its use." High on Injunction, §650.

For decisions of the Court of Appeals as to injunctions against waste, see Downing v.
ilmaleer, 1 Man., 65; Loudon v. Warfield, 5 J.J. M., 196; Houghton v. Cooper -, 6 B. M.^
I ; and Brasfoar v. Macey, 3 J.J. M., 89, in which latter case it was held that, though
ontingent remainder-man can not maintain an action for waste committed, he may main-
n an action to prevent waste.

The decisions as to injunctions against waste seem to be conclusive against the dictum
Hillman v. Hurley, 82 Ky., 629, as to the necessity of actual possession in order to en-
in trespasses.

4. Injunctions against nuisances.

(1) An indictment, and not an injunction, is the remedy to suppress a public nuisance,
cept in behalf of persons who are specially injured thereby (Barr and Yeiserx. Stevens,
Bibb, 292; 10 Bush, 292); and though five persons, residing at different places in the
ighborhood of a nuisance, unite in a petition for its abatement, " it by no means follows
it each may not have sustained a special injury. . . . The fact that the injury is
;ntical when applied to each family does not make such a public nuisance as would de«
ive the citizen of his right to redress." Seifried\. Hays, 81 Ay., 377.

(2) Discomfort .caused by the noise of machinery or of railroad trains (10 Bush, 294;
Ky., 381), or by occasional sufferings from smoke and soot {Louisville Coffin Co. v.

arren, 78 Ky., 400), is not ground for an injunction : aliier, as to stenches, &c, affecting
alth {Sei/ried v. Hays, 81 Ky., 377), in which the defendant (a butcher) was restrained
3t from carrying on his business, but) " from keeping dead animals, or any parts of dead
imals, on his premises in such manner as shall cause the offensive odor and stench com.
lined of."



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INJUNCTION — WHEN AND HOW OBTAINED. 2JI

>f equity will grant an injunction to restrain a nuisance, only in cases
:learly made out upon determinate and satisfactory evidence; for if the
icting and the injury doubtful, that alone will constitute a ground for
extraordinary interposition." Dumesnil v. Dupont, 18 B. M. t 804.
er, will weigh the evidence as in otheY cases (see Louisville Coffin Co. v.
Ky., 400 ; Seifried v. Hays, *SrV., 81 Ky., 383 ; Hahn and Harris v. Thorn*
) ; and if it be. doubtful whether the thing complained of constitutes a
ncellor will not interfere: thus, in Dumesnil v. Dupont, it was held that
operly refused to suppress a powder-house which the defendant had
liree hundred yards" from the plaintiff's residence. And see to same
., v. Short Route R. Co., 85 A>., 640.

ructions of water courses, the diversion of streams from mills, the back
and the pulling down of the banks of rivers, and thereby exposing
inundation, are all instances in which such relief may be appropriately
and Harris v. Thomberry, J Bush, 406.

;st between two mill-owners, in which the junior complained that the
1 flowage of water on his mill by erecting a new dam ; it was held that,
d not raise the stream higher than the old dam had done within twenty
» before the erection of the new one, the junior had no right to complain.
r* Johns ; 6 B. M., 136; and see Tye v. Catching, 78 Ky., 463.
hat the nuisance complained of existed when the plaintiff erected his
ar it constitutes no defence. 81 Av., 382.

e mere acquiescence in the existence of a nuisance for seven years, or even
1 not ordinarily prevent the party from abating it, still where one stands
b erection of buildings, as in this case, and their use for the purposes
re constructed for seven years, it becomes very persuasive evidence that
ined of is such as is incidental to like improvements and common to
ion on this square." 78 Ky., 406; and see 6 Bush, 486.
ning municipal corporations from changing grades of streets to the injury
rty owners, see City of Louisville v. Louisville Rolling Mill Co., 3 Bush,
id.

ining railroad companies from interfering with public streets, see Cosby,
<5r* Russellville R. R. Co., 10 Bush, 288, and cases cited.
'0 protect easements.

sllor will enjoin interference with the plaintiff's right to the use of a
>6) ; or the diversion of running water ; but it was held that a farmer
)ined from creating a pool in order to collect water for the use of his
\ might thereby temporarily deprive his neighbor of the use of it. Red-
3 Ay., 214.

e chancellor will enjoin interference with the use of a private passway,
e the abatement of a building over it which does not prevent its use.

I a right to a passway, see 7 Dana, 276; 9 Id., 159; 10 B. Al., 463 ; 15
\; 4 Bush, 317; 6 Id., 676; 12 Id., 21; General Statutes, ch. 94, art. 2.
is to franchises.

st between two gas companies, the fact that one of them claimed the
manufacture and sell gas in a city, under an unconstitutional act of the
d the other to an injunction against setting up an exclusive right. 81

:e with a ferry-right may be enjoined. Newport, &*c, v. Taylor 1 s ex y r,

an individual to an injunction restraining a turnpike company from



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(2 * PROVISIONAL REMEDIES, [TITLE VII

jcting a toll-gate at a particular place, it must appear that the gate would be a publi
isance, and, moreover, that the plaintiff would sustain a special injury distinct from thj
Fered by the public. Maysville <Sr» Mt. Sterling T. Co. v. Railiff, 85 A>., 244.
(4) As to preventing usurpation of franchises, see Title 10, ch. 13.

7. Injunctions to quiet title.

An act of 1797 (St. Law, 294) declared that "any person having both the legal title tc
1 possession of, land may institute a suit against any other person setting up a claii
ireto ; and, if the complainant shall be able to establish his title to such land, the d<
idant shall be decreed to release his claim thereto, and to pay to the complainant hi
►ts, unless the defendant shall by his answer disclaim all title to such lands, and offer t
r e such release to the complainant ; in which case the complainant shall pay to the d<
dant his costs, except for special reasons appearing the court should otherwise decree,
at act, having been omitted from the Revised Statutes, was re-enacted by an act o
irch 9, 1854, which statute •• was not repealed by the General Statutes and is now i
1" force." Kincaid v. McGowan, 9 Ky. L. R., 987. Moreover, it seems clear that sue
the law independently of any statute. Artnitage v. Wickliffe, 12 B. M., 495; ATincat
McGowan, supra.

But the chancellor will not thus interfere in behalf of a person who, though in posse
n, can test the validity of an adverse claim by an action at law ; as, where the advers
imant has trespassed on the possession (Scott v. Means , 80 Ky., 460) ; or in behalf, of
rson who, instead of suing for the possession, takes it wrongfully (Hamilton ▼. Het
x*s Aeirs, I Bibb, 67) : aliter as to a person who is lawfully in possession and who ca
t make such test. Trustees of Louisville v. Gray, I Litt., 146; ShinkU v. City of Coving
, 83 Ky., 420; Kincaid \. McGowan, supra.

And it was held that a company, to which a city had granted the right to manufactui
1 sell gas, could, in order to establish its right to do so, maintain an action in equit
linst another company which claimed an exclusive right to do so under a previous grar
m the city. 81 Ky., 263.

And, in accordance with the rule that the giving of a statutory remedy does not per .
jrive a court of equity of jurisdiction which it previously possessed, it was held in Pre.
v. Preston, 85 Ky., 16, that a person in possession of land is not bound to resort to
'eat, as authorized by §473 of the Code, but may have an injunction in order to prever
jther from filing surveys, plats, &*c, for the purpose of obtaining a grant of the Ian
m the Commonwealth.

8. Injunctions to protect mortgagees.

(1) Generally.

It was held under the old practice that the chancellor would enjoin fraudulent removi
mortgaged property, though the debt was not due. Downing v. Palmatur, 1 Afon.,6^
1 see Code, % 237, 249, authorizing attachments to prevent fraudulent removal of mor
red property.

But sureties, indemnified by mortgage, can not delay the creditor, until they subje<
: mortgaged property. I Dana, 189.

(2) Junior mortgagees.

A junior mortgagee may enjoin a senior mortgagee from tacking subsequent advance
his mortgage (Hughes v. Warley, I Bibb, 200) : and see Hart, &*c, v. Hay don, 6rY., 7
., 346, in which it was held that a junior mortgagee had the right, as an intervenin
imant, to contest the demand of the senior mortgagee, upon the grounds of paymen
1 usury; though the mortgagor made no defence, and though the junior mortgage wi
de pendente lite, and the debt was not due.

9. Injunctions in church-controversies.

See Curd, <5rV., v. Wallace, &>c, 7 Dana, 190; Shannon, <5rV., v. Frost, cVf., 3 B. M
\; and notes to chapter 13 of Bullitt and Feland's General Statutes.



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INJUNCTION WHEN i

against infringing trade-ma
quity will not lend its aid
exclusive privilege of decei
;ht prevent another equall
Bush, 131.

having leased a building 1
ras an observatory or towi
, as the "Tower Palace;"
., as he claimed, but as des

10 right to enjoin anothei

A>., 3<>3-

rho sells a product of a p
1 Virginia Tobacco " — can i
; he sells, to the exclusion
1 geographical name, as ap
nufacturer was the first to 1
meaning and thus become
Metcalfe v. Brand, 86 A>.,
urer of mustard in Lexingt
s a trade-mark, does not lo
removal being shown by

urer is as much entitled to
r device to indicate his goo
d in Metcalfe v. Brand tha
ustard " as a trade-mark, 1
r marking his mustard wit
ns v. Meikle, 81 A>., 113, 1
have not used a single lett
; yet, by the exact Simula
lary observer or purchaser,
ve position of the letters a
al appropriation of any pj
and appellants' trade-marl
ibility in doing so, and to
appellants. Thus, by skill
e aggregate, leaving the m
sffect as to destroy its offic*

11 others."

in such cases, see Avery &*
igainst municipal corporatio
s has been shown (note 2,
n of a single trespass, unle
was held that the trustees
aying: '« Although the def
>le sum for damages done
ould be willing to pay un
adage, ' an ounce of prevei
rt, 12 B. M. 9 610) ; and, in
)) requires a municipal co
\i surety,
possession of land which 1



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PROVISIONAL REMEDIES. [m

ance, is fined for thus occupying an alleged public street, in a sum too sma
l1, is entitled to an injunction until the question of title can be decided. 7>
ville v. Gray, I Lilt., 146; Skinkle v. City of Covington, 83 4Cy., 420.
\ Injunction lies, at the suit of tax-payers, to prevent municipal corporatic
propriating public money, as by paying a reward for the arrest of a default

14 Bush, 324.
( A municipal corporation, authorized by the legislature to erect and maint
>, for lighting the public streets and furnishing gas to inhabitants at their 1
rip lied power to grant to others the exclusive right to do so; and, having mi
, by contract, may be enjoined from granting a like privilege to another. 84 J
) The plaintiffs having erected a wharf in the town of Catlettsburg, as autho
:ial act of the legislature, and the authorities of the town having passed an o:
ring all boats arriving there to land at the public landing, the plaintiffs so
ction, to restrain the enforcement of the ordinance, claiming that it was void : t
^h the action should have been transferred to the ordinary docket, if the plain
for damages, as well as for an injunction ; as they sued for an injunction only,

to establish the illegality of the ordinance by a judgment at law — as th<
done in an action for damages, if the ordinance was illegal — their petition w
lismissed. Brown, &*c, v. Trustees of Catlettsburg, 11 Bush, 43$.
l. Injunctions against public servants.

be chancellor may enjoin a common carrier or public warehouseman from
minations against the plaintiff; but should not do so if the plaintiff is
, <SrV., v. Page, &c, 80 Ky., 539.
|. Injunctions as to contracts generally.

i Frank v. Peyton, 82 Ay., 150, it was held that a vendee of land situated in
r a deed which, owing to defective acknowledgment, could not be recorded,

to an injunction restraining the vendor from selling the land to any one else
.. Injunctions as to contracts in restraint of trade.

fie provision in a conveyance of land, that "no intoxicating liquors shall b<
remises in less quantities than five gallons," may be enforced by injunctioi
endee's assignee. Sutton v. Head, 86 Ky., I $6.
) See §§436 and 438 of Code.

273 [300, 301]. Who may grant injunctions. — (The injunctk
granted at the commencement of the action or at any time
ment by the court (a), or by any circuit judge, or by the clerk
t, or the county judge if the judge of the court be absent fr<
ity, or by two justices of the peace if the judge and the clerk
t and the county judge be absent from the county. No inji

be granted by any of the foregoing officers, unless it appes
affidavit of the party applying therefor that it has not b€
1 by the court ; nor shall such injunction be granted by a
ounty judge, or justice, unless it appear from such affidav
5 not been refused by the court or any circuit judge. No

or temporary restraining order shall be granted until aft
;ion seeking the injunction shall be filed. No injunction c
ry restraining order shall be granted by any circuit or other
imilar jurisdiction, in any action pending outside of the cir



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NJUNCTION — WHEN AND HOW OBTAINED. 235

>uch judge shall preside, unless it shall appear from the
ilaintiff that there is no circuit or other judge of simi-
resent atthe time in the [judicial district (Act 1898, p.
ction is pending. (Act 1 894, p. 200. )]

action of A against B, for the recovery of slaves, was pending in C
n action in W county to enjoin B from selling the slaves: held % that
y had no jurisdiction. Moore's adm'r v. Sheppard % I Afei. t 97.



Temporary injunction subject to control of court, — Injunc-
jfore judgment shall be subject to the further order of

Notice of application for injunction. — An injunction shall
igainst a defendant who has answered, unless he have
\ application therefor.

Notice of application for injunction. — [An injunction

only upon reasonable notice, in writing, to the party
Mned, of the time and place of the application therefor,
t or officer to whom the application is to be made.
t or officer to whom the application for an injunction
satisfied by the facts set forth in the affidavit of the ap-
her evidence, that irreparable injury will result to the
:he delay of giving notice, the court or officer may
ry order restraining the act or acts sought to be en-
y be mandatory in its nature, if the case so require,
mandatory restraining order shall be entered by any
dge, or two justices in any case. Such restraining
> case, be granted until the applicant shall have given
bed by subsection 3 of § 278 of the Civil Code, and
ler shall be forthwith served upon the party or parties
joined. The restraining order, if made by the court,
r other judge of similar jurisdiction, shall set forth a

and time, not to exceed ten days from the day upon
is made, at which the applicant shall move the court or
lie injunction, and the order shall remain in force until
trd and determined, but not for a greater length of time
er the day fixed in the order for hearing the applica-
on for injunction shall be tried as provided in this Code
ipplications for injunctions of which notice has been

instance. The restraining order, if made by the clerk
county judge, or two justices of the peace, shall remain
aside or modified, or until the injunction is granted, as



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> PROVISIONAL REMEDIES. [T1T1

vided in § 290 of the Civil Code, as amended by this act.

4, p. 201.)]

§ 2 77 [3°6]- When affidavits may be read. — On the hearing

>lication for an injunction, of which notice has been given,

ty may read affidavits.

§ 278 [307]. Injunction-bonds. — 1. If an injunction be grant

/ proceedings upon a levy made under an execution, and the

>lying for the injunction desire to discharge the levy, he shal

e a bond to the effect that he will satisfy the execution to the <

vhich the injunction may be dissolved, not exceeding the va

property released ; and, upon the execution of such bond, ai
ling of the injunction, the levy shall be discharged. If he <
ire to release the levy, he may execute a bond to the effect
>n a dissolution of the injunction, in whole or in part, he will

property, or its value, forthcoming and subject to the order
rt ; and, upon the execution of such bond, and the issuing <
inction, the property levied on shall be delivered to him (a).

purpose of ascertaining the value of the property, it shall 1
ised as directed in § 215.

2. If such injunction extend further than the stay of proce<
>n the levy, the party shall give such additional bond as the
ge, or officer, granting the injunction may direct.

3. In all other cases, the court, judge, or officer granting t
ction shall, in the order granting it, fix the amount of the b<
given, and may prescribe its terms. If the terms of the bo

so prescribed, it shall be to the effect that the party giving
r to the party enjoined such damages as he may sustain, if it be ;
ided that the injunction ought not to have been granted (b).

4. If the injunction be to stay proceedings upon a judgmer
sunt of the bond shall be sufficient to cover, with other dan

sum of money for which judgment was rendered, with five
:rest thereon, and the rent, hire, or value of the use, for two
property for which judgment was given ; and, in case of pe
perty, its value also.

a) A bond pursuant to the first sentence of this section discharges, but a bo
t to the second sentence does not discharge, a levy. Mallory v. Dauber's <

239.
r or decisions under statutes in force before the adoption of the present Cc
\ridge v. Biggerstaff, 2 Duv., 281, and Keith v. Wilson, 3 Met., 201, and case
78 Ky. f 218.

b) As to actions on bonds pursuant to the last sentence of subsection 3, see no
, page 90.



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INJUNCTION — WHEN AND HOW OBTAINED. 237

Bond, be/ore order issues. — The order of injunction
ued by the clerk until a bond, as is required by § 278,
y of the party obtaining the injunction, shall have been
office.

id which is not executed in the office of the clerk may be quashed on
lant, if he fail to make such motion the irregularity constitutes no de-
1 the bond. Cobb v. Cutis, 4 Liu., 235. See further, as to injunction-
ecu ted. Stevenson v. Miller, 2 Lilt,, 310; Rodman v. Harcourt, &>c, 4

. 3M.

the condition of a bond, from the order directing the injunction will
the validity of the bond : it may be treated as a valid common law
had thereon accordingly. Hardin v. Barbour, <5rV., 6 Men., 396; Hop-
M 9 7 -M-t 3 1 * n d see Crawford v. Woodwortk, <5rV., 9 Bush, 748.

Sureties in bonds. — Sureties in injunction bonds shall be
clerk under the same responsibilities as in other cases
>ted by him.

clerk accepts, as surety, a different person from the one named in the
nj unction is immaterial. 1 Dana, 106

Requisites of order, &c. — The order of injunction shall
the party enjoined ; shall state the injunction ; and, if
discharge a levy under an execution, it shall so state ;
ed and signed by the clerk. If it be issued at the com-
1 action, it shall be indorsed upon the summons, and a
ill be delivered to the sheriff If it be issued during
shall be delivered to him, with as many copies thereof
ies enjoined. The sheriff shall forthwith serve it by de-
:o each party enjoined, and make return thereof on the

Notice dispenses with service of order. — If notice of the
ji injunction have been given to the party sought to be
I not be necessary to serve the order upon him ; he is
ljunction as soon as the bond required of the adverse
d.
An injunction binds the party from the time he is in-

n not affect the rights of persons who are neither parties nor privies to

a injunction restraining a county surveyor from making a survey,

I in an action to which he alone was a defendant, did not prevent a

land from compelling him by mandamus to make the survey. 83

What judgments can not be enjoined. — No injunction shall
tay proceedings upon a judgment of a justice of the



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PROVISIONAL REMEDIES. [TITLE Vl

court, if the value of the matter in dispute <
? dollars.

Action as to granting injunctions. — An injunction
a judgment shall not be granted, in an acti
eeking the injunction, in any other court than tr
: was rendered (a). Nor shall such injunction
irty applying therefor make affidavit that no
iviously granted to stay the proceedings on su

peace may enjoin a judgment rendered by him, though
, it exceed the amount of his general jurisdiction. Dcnm

t not enjoin proceedings upon a judgment of a justice of
. v. Reasor, 84 Ky., 369) ; or proceedings upon a judgment <
»py thereof may have been filed in the circuit court pursuant
ant to ch. 28, art. 13, J 3, of the General Statutes {Kelly
v. Clements, <5rV., 12 Bush, 359; C. O. dr» S. W. R. R. Co,
; exercise of a ferry privilege granted by order of the cou
f the order is erroneous, being an appeal to the circuit coi

'.. 325.

ery Court can not enjoin proceedings upon a judgment of
Pleas. 83 Ay., 244.

»t only to the party against whom the judgment was render
to stay proceedings thereon. 83 Ky., 244.

'dience of an injunction, how punished: — [Disobe
may be punished by the court or by the jud
judge in vacation, as a contempt. Where t
*d, such disobedience may be punished by t
by any judge thereof during a vacation, rece
d court. Upon production of evidence by a
f ah injunction, the court, or any judge there
' proceed by rule and attachment against 1
breach, who may introduce like evidence in \
arty be held to be in contempt, unless he pui
ge in vacation may commit him to jail until t
r take a bond with security for his appearance
npt at the next term of the court, and, in t
\ injunction. (Act 1894, p. 204.)]
wits read, to be filed. — Affidavits read upon an j
tion shall be filed with the papers of the case.
n for additional security. — A party enjoined m«
idgment, after reasonable notice to the adve
for additional security ; and, if it appear on si;
r in the injunction bond has died or removed fn



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rCTlON — DISSOLUTION AND REINSTATEMENT OF. 239

insufficient, the court may vacate the order of injunc-
i reasonable time sufficient security is given.

ARTICLE II.

USSOLUTION AND REINSTATEMENT OF INJUNCTION.

dissolve or modify.

junction, without notice, on plaintiff's petition and affidavits.

junction granted by county judge, or justices.

1 the whole case.

postponement of motion.
>w to be disposed of.
ily one, oh whole case, allowed,
nt of damages on dissolution,
ment, application for.

may be ordered by appellate judge.

Motion to dissolve, &c. t on face of papers. — [Repealed.

02.)]

Motion to dissolve or modify injunctions granted by justices,
n to dissolve or modify an injunction, or to set aside
straining order, granted by the clerk of the court, the



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