Mayor of The City of Manchester v. Smyth
| Decision Date | 15 July 1887 |
| Citation | 10 A. 700,64 N.H. 380 |
| Parties | MAYOR OF THE CITY OF MANCHESTER v. SMYTH. |
| Court | New Hampshire Supreme Court |
Reserved case from Hillsborough county; Smith, Judge, presiding.
Bill in equity for an injunction to restrain the defendant from proceeding with the work of raising and enlarging a wooden building in Manchester. Facts found by the court.
The work was claimed to be in violation of the following ordinance of the city: "No person shall erect, or cause to be erected, any building exceeding ten feet in height, nor shall any building now or hereafter erected be raised or enlarged, unless the walls of the same shall be built of iron, brick, or stone, with the roof of slate, iron, or other incombustible material, within the following limits," etc. The house was originally built in 1845 of wood, a little more than two stories high, with a square roof covered with shingles. In order to obtain additional and better lighted rooms, the defendant has removed the old roof, extended the outer walls upward on. each side of the building from five to seven feet, and had begun to put on a flat gravel concreted roof, which at its highest point is four inches higher, and at its lowest point twenty inches lower, than the highest point of the old roof. If the building is completed according to the defendant's plan, the danger from fire will be in some respects increased, and in others diminished; but on the whole, considering the interior and exterior exposure of the building itself, and that of adjacent buildings, this danger will be neither increased nor diminished.
Sulloway & Topliff, for plaintiff. D. Cross and B. E. Walker, for defendant.
The plaintiff seeks the extraordinary remedy of a perpetual injunction against the defendant's proposed erection and enlargement of his building, claimed to be in violation of a penal ordinance of the city, made to prevent the spread of Are. The equity powers of the court are not often, if ever, invoked or used to restrain or suppress the commission of crimes and misdemeanors, either as a substitute for the remedy by prosecution for the penalty affixed to the offense, or to obviate the necessity of repeated prosecutions. The equity jurisdiction of the court undoubtedly includes, in proper cases, the restraining by injunction of the erection and maintenance of nuisances, public and private. To warrant the application of this restraining power, the danger of irreparable mischief or injury must be...
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N.H. Bd. of Registration in Optometry v. Scott Jewelry Co.
...official to prevent the violation of a criminal statute when the violation does not constitute a public nuisance. Mayor of Manchester v. Smyth, 64 N.H. 380, 10 A. 700. It was conceded by the plaintiffs that the case just cited declares the general rule of equitable jurisdiction and states a......
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Mason v. Deitering
...24 Oh. Cir. Ct. 82; Kirkman v. Handy, 11 Humph. 406; St. James Church v. Arrington, 36 Ala. 546; Keiser v. Lovett, 85 Ind. 240; Mayor v. Smyth (N. H.), 10 A. 700. Because equity has no jurisdiction to enjoin the violation of an ordinance, unless the unperformed act complained of as violatin......
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Village of Ashley v. Ashley Lumber Co.
... ... A ... municipal corporation, either city or village, possesses, ... without special authorization, the inherent ... 81; Ottumwa ... v. Chinn (Iowa) 39 N.W. 670; Manchester v ... Smythe, 64 N.H. 380, 10 A. 700; Ogden v ... Weldon, 40 N.Y.S ... ...
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Town of Jaffrey v. Heffernan
...curiae. DUNCAN, Justice. In support of their motion for judgment notwithstanding the decree, the defendants rely upon Mayor of Manchester v. Smyth, 64 N.H. 380, 10 A. 700 which they assert is controlling and founded upon established principles of equity. See also, Ventnor City v. Fulmer, 92......