Village of Bennington v. George M. Hawks

• Decision Date: 16 October 1926
• Citation: 134 A. 638,100 Vt. 37
• Parties: VILLAGE OF BENNINGTON v. GEORGE M. HAWKS
• Court: Vermont Supreme Court

134 A. 638

100 Vt. 37

VILLAGE OF BENNINGTON v. GEORGE M. HAWKS

Supreme Court of Vermont

October 16, 1926

May Term, 1926.

APPEAL IN CHANCERY. Heard on bill, demurrer, and defendant's motion to dismiss, at the December Term, 1925, Bennington County, Chase, Chancellor. The court, acting pro forma overruled defendant's motion to dismiss, sustained demurrer, and dismissed bill, and to court's action in ordering bill dismissed plaintiff excepted, and appealed therefrom.

Decree affirmed and cause remanded. Let the complainant apply for leave to amend if it be so advised.

Collins M. Graves and George L. Hunt for the defendant.

Francis E. Morrissey and Robert E. Healy for the plaintiff.

Present POWERS, SLACK, BUTLER, and FISH, JJ., and MOULTON, Supr. J.

OPINION

POWERS

The jurisdiction of the court of chancery is essentially civil. It will not, as a rule, interfere to prevent the commission of a crime or to enforce penal or criminal laws. The fact, however, that the result will amount to a restraint of crime will not prevent the court from acting whenever other facts afford a basis for the exercise of its jurisdiction on recognized grounds. In other words, criminality neither affords a basis for, nor does it oust the jurisdiction of the court of chancery. The mere fact, then, that this defendant violated an ordinance of the plaintiff by moving and altering his building without a permit does not give rise to a remedy in equity against him. But his violation of the ordinance may have created a situation amounting to a public nuisance, in which case, by force of the statute (G. L. 4135) if not otherwise, the court of equity has jurisdiction to restrain its continuance and enforce its abatement. So the real question for determination here is, do the allegations of this complaint, which is demurred to, show that the defendant has created a public nuisance? An affirmative answer to this question being necessary to sustain the jurisdiction of the court appealed to, the question of the validity of the ordinance and the fact of its violation are wholly unimportant.

The only allegations in the bill that can be relied upon to show that the defendant has created a public nuisance are those to the effect that he has placed the building in such a position that all the other buildings in its vicinity are in grave danger of destruction in case of fire in any one of them because this building would be a connecting link in communicating such fire from one building to another, and that this building is now so located as to obstruct the work of the firemen in their attempt to put out such a fire. There is no allegation showing the size or height of the building in question, the material of which it or its roof is made, the character, use, or materials of the adjacent buildings, or its distance from them.

A building, even if made of wood and located in a prohibited area, is not a nuisance per se. St. Johns v. McFarlan, 33 Mich. 72, 74, 20 A. R. 671; Radney v. Ashland, 199 Ala. 635, 75 So. 25 26, 26 L.R.A. 1917E, 366; 2 Wood, Nuisances, § 746. If such a building is a nuisance at all, it is a nuisance per accidens,--because of its use, location, surroundings, or other circumstances. Shamburger v. Scheurrer (Tex. Civ. App.), 198 S.W. 1069; 29 Cyc. 1154. It follows that the rules of good pleading require that the particular facts or circumstances that give character to the structure be alleged, that the court may see for itself what that character is. Thus, it is not enough to allege that a building is a nuisance, for this is nothing more than the conclusion of the pleader. Thebaut v. Canova, 11 Fla. 143; Haynes v. Hedrick (Tex. Civ. App.), 223 S.W. 550, 551; Shamburger v. Scheurrer, supra. It is not enough to allege that the building increases the danger of fire to the surrounding buildings. 1 Wood on Nuisances, § 148; Duncan v. Hayes, 22 N.J.Eq. 25, 30; Shamburger v. Scheurrer, supra; Radney v. Ashland, supra. That is a result that necessarily follows the erection of any building in the thickly settled part of a city or village, except it be a strictly fireproof structure. In order to make the increased fire hazard a basis for declaring a building a public nuisance, it must be shown that it unnecessarily and unreasonably increases that hazard. Shamburger v. Scheurrer, supra. Its hazardous character must be unmistakable and the dangers therefrom so imminent and extraordinary as to make an irreparable result probable rather than possible. Such cases,...