Bangs v. Dworak

• Decision Date: 08 February 1906
• Docket Number: 14,109
• Citation: 106 N.W. 780,75 Neb. 714
• Parties: GEORGE H. BANGS, APPELLEE, v. CHARLES F. DWORAK ET AL., APPELLANTS
• Court: Nebraska Supreme Court

106 N.W. 780

75 Neb. 714

GEORGE H. BANGS, APPELLEE, v. CHARLES F. DWORAK ET AL., APPELLANTS

No. 14,109

Supreme Court of Nebraska

February 8, 1906

APPEAL from the district court for Antelope county: JOHN F. BOYD JUDGE. Affirmed.

AFFIRMED.

E. D Kilbourn, for appellants.

N. D Jackson and George F. Boyd, contra.

DUFFIE, C. ALBERT, C., concurs. JACKSON, C., not sitting.

OPINION

DUFFIE, C.

Oakdale is an incorporated village in the county of Antelope. In November, 1904, an ordinance was passed prescribing the limits within which no building or buildings should be erected in said village except of brick, stone or other incombustible material, and providing a penalty for the violation of such ordinance, and for the destruction or removal of any building or buildings constructed or repaired in violation of such ordinance. The ordinance contained a prohibition against the removal of wooden buildings to a lot within the prescribed fire limits. Bangs, the appellee, alleges in his petition that he is the owner of certain lots lying within the fire limits of the village of Oakdale, upon which he resides in a dwelling house of the value of $ 2,000; that there are other improvements upon the premises consisting of a barn, outbuildings, etc.; that appellant Dworak is the owner of the adjoining premises, also situated within the fire limits of the village, and that Dworak has purchased, and employed the appellant Blesh to move onto his premises, a frame building with a shingle roof, not constructed of stone, brick or other incombustible material and not covered with a fireproof roof and purposes to locate the same within a distance of 15 feet of the residence of the plaintiff; and that, if allowed to do so, the plaintiff will be damaged on account of the increased danger from fire to his residence and other improvements, and by the enhanced rate of insurance which he will be required to pay by reason of the increased hazard occasioned by the removal and location of said buildings. He prayed a writ enjoining the defendants from proceeding with the proposed removal. A temporary injunction was issued, and a motion to dissolve the same overruled by the court. Thereafter a general demurrer to the petition was overruled, and the defendants electing to stand upon their demurrer, the temporary injunction was made perpetual. Defendants have appealed.

The appellants insist that a court of equity will not lend its aid to enforce by injunction the by-laws or ordinances of a municipal corporation restraining an act, unless the act is shown to be a nuisance per se, and 1 High Injunctions (4th ed.), sec. 788; St. Johns v. McFarlan, 33 Mich. 72; Phillips v. Allen, 41 Pa. 481; Attorney General v. Utica Ins. Co., 2 Johns. Ch. 370, and Trustees of Waupun v. Moore, 34 Wis. 450, are cited in support of the proposition that a court of chancery has no jurisdiction to restrain the threatened violation of a village ordinance, unless the act...