City of Concord v. Burleigh

• Decision Date: 11 March 1892
• Citation: 67 N.H. 106,36 A. 606
• Parties: CITY OF CONCORD v. BURLEIGH.
• Court: New Hampshire Supreme Court

36 A. 606

67 N.H. 106

CITY OF CONCORD

v. BURLEIGH.

Supreme Court of New Hampshire. Merrimack.

March 11, 1892.

Exceptions from Merrimack county.

Action by the city of Concord against Betsey J. Burleigh to recover the expense of removing a house from a street. From findings by the court, defendant brings exceptions. Exceptions overruled.

June 7, 1890, the plaintiffs' mayor gave the defendant a written license to move a wooden building, then situate on Spring street, through the streets, to her lot on Marshall street. One ordinance of the city provided that "no person shall move or assist in moving any * * * building through any street * * * in the city, without first obtaining a written license from the mayor and aldermen." Another ordinance forbade any person to erect, move, or enlarge any wooden building within the limits of the fire precinct, without the consent of the mayor and aldermen. For many years the mayors of Concord have given licenses to move buildings through the streets of the city, without the concurrence of, or objection by, the aldermen; but whether the authority was exercised with or without their knowledge is not found. Between June 10 and June 12, 1890, at which time the defendant's lot on Marshall street was within the fire precinct, the defendant, without authority other than the license of the mayor, moved the building into Spring street, substantially covering it between the sidewalks, so that teams could not pass. June 12, 1890, on petition of the plaintiffs, an injunction was obtained, restraining the defendant from placing the building upon her lot until leave should be procured from the mayor and aldermen. Subsequently, on the defendant's petition, leave was refused, and her application for a dissolution of the injunction was denied. After the injunction was granted, the plaintiffs requested the defendant to remove the building,— and, after her application to dissolve the injunction was denied, again notified her in writing to remove it, and informed her that, unless she did so, it would be removed at her expense. She did not remove it, and two or three days thereafter the plaintiffs caused it to be moved beyond the limits of the fire precinct, incurring thereby the expense which they seek to recover.

H. G. Sargent, for plaintiffs.

Betsey J. Burleigh, pro se.

ALLEN, J. The authority of the city council to adopt the statutes—in legal effect, local ordinances—is unquestionable. Gen. Laws, c. 48, § 10, cl. 7. The mayor's license, without the concurrence of the aldermen, did not authorize the defendant to move the building into or through the streets. The fact that...