Town of Gallup v. Constant.

Citation36 N.M. 211,11 P.2d 962
Decision Date21 May 1932
Docket NumberNo. 3727.,3727.
PartiesTOWN OF GALLUPv.CONSTANT.
CourtSupreme Court of New Mexico
OPINION TEXT STARTS HERE

Syllabus by the Court.

Injuctive relief may be granted to restrain erection and compel removal of wooden buildings within fire limits established by ordinance imposing penalties.

Fire limit ordinance held not unreasonable merely because it permits restraint or abatement of something which otherwise might not be considered nuisance per se (Comp. St. 1929, § 90-402, subsec. 31).

Municipality suing to enjoin public nuisance need not show special damage.

Municipality could restrain erection of wooden buildings and compel removal of buildings erected within fire limits, where fire limit ordinance in effect declared condition proscribed to constitute public nuisance (Comp. St. 1929, § 90-402, subsec. 31).

1. The several municipalities of the state have express power under section 90-402, Comp. 1929, to establish fire limits, and to prescribe by reasonable regulations the character of permissible construction therein.

2. A fire limit ordinance enacted pursuant to section 90-402, Comp. 1929, will not be deemed unreasonable merely because its effect is to permit the restraint or abatement as a public nuisance of something which but for the prohibitions in the ordinance might not be considered a nuisance per se.

3. Equity has power by injunctive relief, in a proper case, to restrain the erection and compel the removal of wooden buildings within the fire limits established by a municipal ordinance, notwithstanding the doing of the acts enjoined subjects the person committing them to the penalties imposed by the ordinance.

4. A municipality suing to enjoin a public nuisance need not show special damage to itself to entitle it to the relief sought.

5. Assuming, without deciding, that prior open and general disregard by the public of a municipal ordinance, acquiesced in by the municipality, would defeat the latter's right to injunctive relief in aid of its enforcement when sought, held that present record does not disclose facts warranting application of the rule contended for.

6. Facts of case at bar examined, and held to warrant injunctive relief in favor of the municipality.

Appeal from District Court, McKinley County; Otero, Judge.

Suit by D. M. Constant against the Town of Gallup. From a decree granting an injunction, defendant appeals.

Affirmed.

Municipality suing to enjoin public nuisance need not show special damage.

A. T. Hannett, of Albuquerque, for appellant.

Mann & Wilson, of Albuquerque, for appelee.

SADLER, J.

The appellant, D. M. Constant, seeks reversal of a decree of the district court of McKinley county restraining the continued erection of certain frame or wooden automobile camp cottages on property owned by him in the town of Gallup and ordering the summary removal of eight of such cottages theretofore erected. The injunction issued at the instance of the town of Gallup in aid of its Ordinance No. 202 prescribing fire limits, requiring the procural of a permit before building operations should be carried on within such limits and defining the kind and character of permissible construction. It is conceded that the buildings in question are within the fire limits as fixed by said ordinance. Appellant does not dispute the fact that his buildings are of a kind, being wooden, whose construction within such limits is prohibited by the ordinance, nor that he proceeded in the erection of same without the required permit.

It appeared from the evidence, and the court found, that these frame cottages, constructed not more than eight feet apart, were in such proximity to each other and to thirteen other like structures and a certain one-story frame stucco building of defendant's, and the whole in such proximity to a residential section of the town, that, in view of the direction of a strong westerly wind blowing 80 per cent. of the time, the same created “an extra fire hazard and a great menace to the lives and property of the citizens of the Town of Gallup.”

The appellant invoked an estoppel against the relief sought by reason of the claim, not without support in the evidence, that other violations of said ordinance had been permitted, or, at least, not prosecuted He also laid claim to some equities in his favor from this circumstance: He applied to the town clerk orally for a permit under said ordinance to construct three of the frame cottages in question. He also consulted with the building inspector regarding his oral application. The building inspector informed him that a permit would issue provided it did not result in raising the insurance rates in Galup. Jointly they despatched a telegram of inquiry to the Underwriters' Association in Denver. The reply advised that the construction of these three buildings would not increase fire rates to the property of any one save that of appellant himself.

Thereupon he proceeded, without permit, to construct not only the three buildings for which permit had been orally applied for, but also the remainder of the ten or twelve cottages practically completed at the time complaint was filed. It seems that on June 29, 1931, a few days following the answer wire from Underwriters' Association, a second wire came from its rate expert advising that the construction of the three cottages would result in a raise of fire insurance rates all over Gallup. Accordingly, the town board of trustees on June 30th at a regular meeting instructed its attorney to stop the further erection of said buildings. Appellant was advised of this action on July 1st, at which time he had completed the construction of four of said cottages. In addition, he had been given a printed copy of the ordinance when he made his oral application for permit on June 20th.

The appellant, while questioning the reasonableness of the ordinance, places main reliance for a reversal upon the contention that appellee showed no right to the equitable remedy of injunction by its pleading, nor established such right by its proof. On his first contention, we have no hesitancy in saying that no reasons are assigned in argument showing the ordinance in question to be other than a proper exercise by the town's governing board of a power expressly committed to municipal corporations by the provisions of subsection 31 of section 90-402, Comp. 1929. This subsection, for the expressed purpose of “guarding against calamities by fire,” authorized municipalities to establish fire limits, prescribe the materials of which buildings should be constructed therein, and to prevent the erection, alteration, repair, etc., of any building or structure, “the outside walls of which are built of wood, or other inflammable material.” The manner of exercising this power very wisely has been left to the discretion of the governing boards of the various municipalities of the state. Nothing short of an obviously arbitrary or unreasonable exercise of the power conferred would justify or warrant an interference by the courts with the discretion vested in the town trustees in a matter of this kind. See Page v. Town of Gallup, 26 N. M. 239, 191 P. 460.

[1][2] The appellant's strongest point, and, as stated, the one upon which his counsel has mainly relied, lies in the contention that no cause of action was stated or established in equity. His position on this argument is made formidable because he is able to draw to its support a respectable array of authorities. See 32 C. J. 276, § 439, and cases cited in note 19, under the topic “Injunctions,” and 6 McQuillin on Municipal Corporations (2d Ed.) § 2669, and cases cited in note 97. The cases supporting his position deny equitable relief upon varying grounds. Some hold that the penal provisions of the ordinance furnish a remedy for its enforcement. Others magnify the importance of the doctrine that equity will not enjoin a public nuisance, unless it interferes with property rights. But by far the greater number base their denial of injunctive relief squarely upon the ancient rule that equity will not interfere to prevent a crime. Perhaps all might in one view or another be classified under the doctrine that a complete remedy at law bars relief in equity.

After careful investigation and research, however, we are convinced that the authorities cited and relied upon by the appellant no longer represent the prevailing view, at least, not the sounder view. It now seems settled that, where equitable grounds exist warranting injunctive relief for the protection of public rights, property, safety, or welfare, the claim to such relief is not weakened or defeated by the mere fact that the act complained of constitutes a crime or is punishable under penal provisions of municipal ordinances. An exhaustive case note on the subject will be found at 40 A. L. R. 1145. Accordingly, the state and its governmental agencies may invoke the powers of equity to enjoin a public nuisance or something in the nature thereof, even though its creation or maintenance is subject to prosecution criminally. The relief is awarded not because of, but notwithstanding, the criminal character of the threatened or consumated act.

There are many instances, particularly among the more modern decisions, in which the courts have granted this relief to restrain the erection or compel the removal of wooden buildings within the fire limits created by municipal ordinances. Some draw upon one, some upon another, source of equitable jurisdiction, but none gainsay the right to it in a proper case. 2 Dillon on Municipal Corporations (5th Ed.) § 727; Heerdt v. City of Portland (D. C.) 8 F.(2d) 871; City of Oberlin v. Keys, 113 Kan. 421, 215 P. 283; City of Monticello v. Bates, 163 Ky. 38, 173 S. W. 159; Galanty v. City of Maysville, 176 Ky. 523, 196 S. W. 169, 171; Robinson v. Town of Paintsville, 199 Ky. 247, 250 S. W. 972; Inhabitants of Houlton v. Titcomb, 102 Me. 272, 66 A. 733, 10 L. R. A. (N. S.) 580, 120 Am. St. Rep....

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20 cases
  • State v. Wilson
    • United States
    • Supreme Court of New Mexico
    • June 7, 2021
    ...health, comfort, and welfare" (internal quotation marks and citation omitted)); Town of Gallup v. Constant , 1932-NMSC-036, ¶ 21, 36 N.M. 211, 11 P.2d 962 (recognizing "[t]he right of the state, or its governmental agencies, within reasonable limits to thus declare a certain thing, or a cer......
  • Huber v. Delong, 2092
    • United States
    • United States State Supreme Court of Wyoming
    • May 29, 1939
    ...... abate nuisances, Section 22-369, 22-374 R. S., and enact. ordinances for such purpose. Town of Gallup v. Constant. (N. M.) 11 P.2d 962. There is a difference between. statutes delegating ......
  • State v. Wilson
    • United States
    • Supreme Court of New Mexico
    • June 7, 2021
    ...public health, comfort, and welfare" (internal quotation marks and citation omitted)); Town of Gallup v. Constant, 1932-NMSC-036, ¶ 21, 36 N.M. 211, 11 P.2d 962 (recognizing "[t]he right of the state, or its governmental agencies, within reasonable limits to thus declare a certain thing, or......
  • State v. Wilson
    • United States
    • Supreme Court of New Mexico
    • June 7, 2021
    ...public health, comfort, and welfare" (internal quotation marks and citation omitted)); Town of Gallup v. Constant, 1932-NMSC-036, ¶ 21, 36 N.M. 211, 11 P.2d 962 (recognizing "[t]he right of the state, or its governmental agencies, within reasonable limits to thus declare a certain thing, or......
  • Request a trial to view additional results

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