Knight v. City of Riverton

• Decision Date: 21 July 1953
• Docket Number: No. 2594,2594
• Parties: KNIGHT, v. CITY OF RIVERTON et al.
• Court: Wyoming Supreme Court

Page 748

259 P.2d 748

71 Wyo. 459

KNIGHT, v. CITY OF RIVERTON et al.

No. 2594.

Supreme Court of Wyoming.

July 21, 1953.

W. M. Haight, Riverton, for appellant.

Moran & Murphy and R. Lauren Moran, Riverton, for respondents.

BLUME, Chief Justice.

This is an action brought for the purpose of removing a popcorn stand seven feet by fourteen feet from the fire limits of Riverton of this state. T. E. Knight is the plaintiff in this case. Defendants are the City of Riverton and the officials thereof and the owners of the property to which the popcorn stand was moved namely, lot 24 in block 9 of the City of Riverton, and John A. Nelson, the owner of the popcorn stand involved herein. A temporary injunction was issued in the case. Trial was had to the court without a jury and the court found for the defendant and vacated the temporary injunction issued herein. Plaintiff has appealed.

Plaintiff's petition was filed on May 26, 1952. It alleged that the popcorn stand above mentioned had been moved into the fire limits of the City of Riverton on May 22, 1952, contrary to Ordinance No. 209 of the city; that the City Engineer of Riverton on May 20, 1952, issued a permit to John A. Nelson to move the popcorn stand above mentioned; that the issuance of the permit was illegal and contrary to the ordinance of the city; that the popcorn stand was moved as above mentioned without the consent of the city council; that plaintiff is a taxpayer; that the popcorn stand does not comply with the provisions of Ordinance No. 209. Plaintiff prayed that an order be issued declaring the popcorn stand a nuisance and that it be removed from the fire limits as above mentioned. A copy of Ordinance No. 209 was attached to the petition. Section 198 thereof provides that lot 24 in block 9 above mentioned is within the fire limits of the City of Riverton. Section 199 provides as follows:

'Erection in or Removal into Fire District of Buildings. It shall be unlawful for any person, firm or corporation to erect, construct or remove from its present location therein to any other location therein, or to remove from any place outside of to any lot or lots within said district as described and set forth in Section 2 of this ordinance, any house, building, shed or other structure unless the same shall be constructed as hereinafter provided, and unless a building permit therefor shall have first been obtained from the building inspector as provided by the ordinances of the town. It is within the discretion of the town council of the town of Riverton as to whether or not such permit shall be granted for such building to be erected or constructed or moved into said fire district or moved from one location therein to another location therein, and at no time shall such a building be permitted where it will increase the fire hazards of any building or buildings now constructed in said fire limits. It is further provided that in the event any building or buildings are moved into said fire limits or constructed or erected therein without a permit and the consent of the town council, the said building shall be declared a nuisance and to be removed according to law, and the party or parties violating this ordinance shall be subject to the further penalties as hereinafter provided.' Another section provides that the foundation should be of masonry or concrete. A further section provides that the walls of the structure of a building within the fire limits shall have walls of eight inches if the building is one story high.

The City of Riverton and its officials appeared in the case denying the allegations of the petition generally and alleging that the removal of the popcorn stand of John A. Nelson into the fire limits of the city was at the discretion of the city council and that the council had determined that the structure does not and will not constitute a fire hazard and approved the placing of it as above mentioned and that the permit issued was in compliance with the ordinance of the city. John Nelson answered that he is the owner of the popcorn stand herein involved; that it is of steel and glass construction; that in March 1952, he requested the permission of the Mayor and City Council to move the popcorn stand to lot 24 in block 9; that he obtained permission of the adjacent property owners and the Zoning Commission and the City Engineer, that the latter issued a permit to him on May 20, 1952; that thereafter, on June 2, 1952, the Mayor and City Council ratified the previous action and consented to the moving and location of the popcorn stand where it was moved as above mentioned. He denied the allegations of the petition generally in other respects. The remaining of the defendants appeared and answered that the popcorn stand was moved in accordance with a permit duly issued.

The evidence herein shows that the popcorn stand in question is of steel and glass construction but that its walls are not of the thickness mentioned in Ordinance 209. It was moved onto lot 24 in block 9 in the City of Riverton and was temporarily placed onto the lot on a wooden foundation. The defendant Nelson fully explained why that was done and he testified that he was prevented from constructing a fireproof foundation by reason of the temporary injunction which was issued in the case. Hence we shall not consider the temporary foundation of the popcorn stand any further in this case. It further appears that Nelson appeared before the council in March 1952. At that time the Building Inspector was directed to investigate the matter. He required the defendant to obtain consent of the Zoning Commission, which in turn required him to obtain the consent of the adjacent property owners. That consent was obtained although in a somewhat informal manner. The Zoning Commission thereupon gave its consent for the moving of the popcorn stand onto the lot above mentioned. Subsequently, on May 20, 1952, the Building Inspector and the City Engineer issued a permit for placing the property in question here as above mentioned. On June 2, 1952, the city council approved the action of the engineer in issuing the permit to the defendant Nelson. Before that approval was obtained and on May 26, 1952, shortly after the defendant John A. Nelson had moved his popcorn stand on the lot above mentioned, the plaintiff herein brought this action. There is little conflict in the evidence. A few additional facts will be mentioned hereafter.

The position of counsel for appellant is as follows: 'We present an ordinance, a fire ordinance, which contains certain definite provisions relative to the manner of issuance of building permits thereunder, and the types of construction permissible thereunder. We show by competent evidence that this ordinance has been violated in two particulars: improper issuance, and failure to comply with construction restrictions. With proof of these facts we have made out our case and are entitled to the injunctive relief as prayed for in plaintiff's petition.' In other words, it is the contention of counsel that any private individual has been constituted a watch dog to see that the ordinances of a municipality are enforced. In this contention counsel goes too far, in the absence of legislative provisions to that effect. Thus it has been held in State ex rel. Burton v. Vandyne, 159 Kan. 378, 155 P.2d 458, that a county attorney has no power to enforce a zoning ordinance in connection with the erection of an ice plant, but that generally a city has exclusive powers to enforce its ordinances. In First National Bank of Mt. Vernon v. Sarlls, 129 Ind. 201, 203, 28 N.E. 434, 13 L.R.A. 481, the court stated: 'As a rule, a court of equity will not, at the suit of a city, restrain by injunction the threatened violation of an ordinance of such city regulating the erection of buildings for the purpose of greater security against damage by fire. * * * Nor will the courts thus interfere at the suit of an individual, when such interference is sought solely for the enforcement of the ordinance, and not because of special damage threatening the party asking such interference.' In Shelton v. Lentz, 191 Mo.App. 699, 178 S.W. 243, 244, the court stated: 'It may be conceded that the general rule is that equity will not interfere to restrain the violation of a municipal ordinance, nor to prevent the commission of a crime, at the instance merely of a citizen who suffers no special or peculiar injury from the doing of the act sought to be restrained, different from that suffered by any other citizen. * * * Nor will a suit in equity lie at the instance of an individual when brought solely for the enforcement of the ordinance and not because of any special or peculiar damage threatened to the plaintiff.' In the case of Green v. Lake, 54 Miss. 540, 545, the court stated: 'To abate a public nuisance, the public authority must move. A private action, either at law or in equity, will not lie, unless the plaintiff has sustained some special damage. * * * The complainant must sustain a special or peculiar damage,--an injury distinct from that done to the public at large.' Numerous other authorities to the same effect might be cited.

In some earlier cases it was held that: 'Courts of equity will not enjoin an act which would otherwise be lawful, but which is...