City of Huron v. Bank of Volga

• Decision Date: 09 April 1896
• Citation: 66 N.W. 815
• Parties: CITY OF HURON, Plaintiff and respondent, v. BANK OF VOLGA., Defendant and appellant.
• Court: South Dakota Supreme Court

66 N.W. 815

59 AmStRep 769 (1896)

CITY OF HURON, Plaintiff and respondent,

v.

BANK OF VOLGA., Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Beadle County, SD Hon. A. W. Campbell, Judge Affirmed T. H. Null Attorneys for appellant. A. W. Wilmarth, Huron, SD Attorneys for respondent. Opinion filed April 9, 1896

[8 SD 450]

FULLER, J.

The complaint in this action by a municipal corporation against a private corporation to abate a public nuisance alleges, and the specific findings of fact by the court conclusively show, that the Wright House, a large, three-story, wooden structure, owned by the defendant, and situated conspicuously upon a business street in the most densely populated portion of the city of Huron, was badly damaged and partially destroyed by a fire which occurred during the month of March, 1891, and that by reason thereof conditions arose and still exist in and about said structure which endanger the property and lives of the inhabitants of said city. As the existence of a public nuisance, extremely dangerous and unusually repulsive in character, may well be conceded from the undisputed evidence, further facts will not be recited. By the decree of the court defendant was directed to tear down and remove its ruined and dilapidated building, and upon failure so to do within 30 days the plaintiff was authorized to tear down and remove and abate the same. The defendant in the court below, and now upon appeal from the judgment, relies wholly upon the proposition that the corporate authority was without power to maintain the action. Unless a public nuisance is specially injurious to the private person, the statute authorizing a civil remedy therefor precludes him from maintaining an action, and counsel for appellant maintain that respondent’s exclusive statutory remedy is by indictment or abatement. Comp. Laws, § 4688, 4690. Respondent’s charter provides that “the city council shall have power to restrain, prohibit and suppress nuisances at common law,” and a proper regard for the peace and tranquility of society, as well as the interests of the members thereof, suggests the advantages resulting in a doubtful case from the right of a municipal corporation to obtain a judicial determination of the existence of a public nuisance before proceeding to demolish and destroy a building lawfully erected, which, without fault of the owner, appears to have become menacing and harmful to the inhabitants of a city. In discussing the question Judge

[8 SD 451]

Dillon says:

“As there is in such cases a judicial remedy in favor of the citizen, so, on principle, the right of the...