Inhabitants of Houlton v. Titcomb , 102 Me. 272 ( 1906 )

Spear, J.

This is a bill in equity brought by the inhabitants of Houlton in the name of their selectmen against Frank W. Titcomb and the Houlton Savings Bank, to restrain them from the alleged, and intended, violation of the town ordinances regulating the erection, alteration and enlargement of wooden buildings within the fire district of said town. The case comes to this court upon the bill, answer, replication and agreed statement of facts.

The bill properly sets out the ordinances alleged to have .been violated, their adoption at a legal town meeting, the ownership of property by the respondents and their violation and intended violation of the ordinances and that, if their intention is carried into effect, it will produce the existence of a public and permanent nuisance against the by-laws and ordinances of the town and statutes of the State. We think it is unnecessary to specifically refer to any of the allegations of the bill except the third and fourth items which we insert in full. The third is as follows: “Said Frank W. Titcomb and said Savings Bank are now erecting, altering, raising, roofing, enlarging and otherwise adding to, and building upon with wood, a certain two story wooden or frame building upon their said lot or parcel of land hereinbefore named and described, without ally license from the municipal officers of said town of Houlton to do the same, and in violation of said by-laws and ordinances, and in violation of law.”

The fourth reads: “Said Frank W. Titcomb and said Savings Bank threaten, purpose, intend, and are about to proceed forthwith to fully complete, erect, alter, raise, roof, enlarge, add to, and build upon with wood, said wooden building, without any license from the municipal officers of said town of Houlton to do so, and are now at work upon the same in violation of said by-laws and ordinances.”

These are the two items, it will be observed that respectively charge the defendants with the actual and intended violations of the ordinances of the town. The Houlton Savings Bank in its answer avers that the only interest which it has in the premises described is by virtue of a mortgage thereon held by the Bank. But by the agreed statement, this defendant admits its joint ownership and the acts complained of in paragraph three and four of the bill. It must therefore stand or fall with the defendant Titcomb.

Titcomb in his answer admits the truth of the allegations of fact in the third and fourth items of the plaintiffs’ bill but denies, in the fourth item of his answer, that the acts done and proposed to be done are in violation of the town ordinances^ and avers that he had authority and license from (he inhabitants of the town of Houlton to alter, raise, roof and enlarge said building as he was proceeding to do. He also denies in the fifth item that his proposed alterations upon the building would make it a public nuisance.

The ordinances upon which the plaintiffs rely to prevent the defendants from the prosecution of the work which they have undertaken upon the building in question, reads as follows: “Sec. 2. No wooden or frame building shall hereafter be erected, nor any building now erected, or hereafter to be erected, be altered, raised, roofed, enlarged or otherwise added to or built upon with wood, nor any wooden building be removed 'from other territory, to and upon the territory described in section one, nor from any portion of said Fire District to another portion thereof, except as hereinafter provided, and any such building so erected, added to, or removed contrary to the provisions of this ordinance, shall be deemed a public and common nuisance and abated as such.

“Sec. 3. The municipal officers may grant licenses to erect, alter, raise, roof, enlarge, or otherwise add to or build upon, or move any wooden building within said District, upon such terms and conditions and subject to such limitations and restrictions as they may prescribe; but before any such license is granted, a notice of the application therefor shall be published in a newspaper printed in said Town, at the expense of the petitioner.”

The defendants concede that the above by-laws and ordinances were legally enacted and adopted by the town and since their enactment and adoption have been in full force and virtue. The agreed statement also shows that the defendants admit the acts complained of by said plaintiffs in paragraph three and four of their bill, but claim to justify said acts by the action of the special town meeting, set forth in paragraph six of the ánswer of the defendant Titcomb, that on the 22nd day of April, 1903, the town of Houlton at a legal meeting called for the purpose authorized him to operate upon the building as he was doing and intended to do. Article three of the warrant calling this town meeting, under which he claims to justify his acts, was as follows: “Art. 3. To see if the Town will authorize and allow Frank W. Titcomb to repair^ and put in an inhabitable condition the old Sleeper House, so called, on the north side of Bangor Street, in said Houlton, opposite the Foundry.” The town voted upon this article as follows: “Art. 3. Voted to authorize and allow Frank W. Titcomb to repair and put in an inhabitable condition the old Sleeper House, so called, situate on the north side of Bangor Street, in said Houlton opposite the Foundry.”

It is further conceded that the premises described in said article three are the ones involved in this controversy and are within the fire limits described in the ordinances herein set forth “ except so far as the same may have been removed from said fire limits by the act of the said special town meeting.” Nor is it claimed that'the defendants had ever received the license, authorized by article three of the ordinances above quoted, to perform any of the acts prohibited by the ordinances and complained of in plaintiffs’ bill. The defendants in their argument also admit the legality and constitutionality of the fire ordinances in question.

The only issue, therefore, raised in this ease is whether the vote of the special town meeting above quoted under article three of the warrant relieved the defendants from the operation of the ordinances with reference to the wooden building, which they were seeking to alter as set forth in the plaintiffs’ bill and admitted in their answer. The defendants claim in item six of their answer that on account, of the vote in this special town meeting, the town should be estopped to invoke the application of the ordinances to their proposed action. Without determining whether the doctrine of estoppel would apply if the vote in the special town meeting had authorized the defendant to do all that the ordinance prohibited, let us first discover whether, as a matter of fact or legal inference, the vote in the special town meeting did authorize the defendants to do any of the things which the ordinances prohibited. In other words, does the subject matter of the vote conflict with the subject matter of the ordinances?

The language of section two of the ordinances which directly applies to the issue raised in this ease reads, “No wooden or frame building shall hereafter be erected nor any building now erected or hereinafter to be erected, be altered, raised, roofed, enlarged, or otherwise added to or built upon with wood,” etc. The defendants admit in their answer that the}' were “about to raise, roof and enlarge the building,” that is they were about to do just what the ordinances inhibit. Now, did the vote of the town at its special meeting authorize the defendants to do any of these inhibited things? We think not. This vote, strictly following the article in the warrant, simply authorized the defendants “to repair and put in an inhabitable condition the old Sleeper House ” etc. which is the house in question. By a comparison of the phraseology of this vote with the language of the ordinances, it will be observed that it does not repeal or modify the inhibitions or become inconsistent with the complete application of the ordinances to the facts set out in the plaintiffs’ .bill and admitted by the defendants’ answer. The ordinances do not pretend or assume to prevent the ordinary repair of a house and putting it into inhabitable condition. It was not intended by the ordinances to prohibit such action on the part of the householder. It would be clearly unreasonable if it did. Undoubtedly many of the houses in Houlton require'more or less repairs every year to make them inhabitable. A house might become uninhabitable for want of shingling, yet it would hardly be contended that the above ordinances were intended to prevent the repair of shingling to make it inhabitable, without a license from 'the municipal officers. We are indeed at a loss to know just what the town meant by the passage in its town meeting of the above vote. There is nothing in the case or the vote, which tends to show the condition of the house which it authorized the defendant to repair, or what repairs would be necessary to make it inhabitable; whether it was shingling, clapboarding, inserting sills or putting on a roof; or that any of the repairs permitted by the vote came within the scope of the ordinances. Our conclusion consequently is that the vote of the town authorizing the defendants to repair ami make their house inhabitable, in no way contravenes or even modifies the application of the ordinances invoked by the plaintiffs.

The ordinances are in derogation of the common law and must be construed strictly. They cannot be enlarged by implication. The defendants had a right therefore to do anything to their property not strictly inhibited by the ordinances. Hence it seems, so far as the case or the vote shows, that the town only authorized the defendants to do what they had a right to do without any such vote, and without any violation of the ordinances in question. But when the defendants proceed to go farther, and, as is alleged in the plaintiffs’ bill and admitted in the answer, attempt “to complete, erect, alter, raise, roof, enlarge, add to and build upon with wood, said wooden building without any .license from the municipal officers” they then clearly bring themselves within the prohibition of the ordinances.

But the mere fact that the proposed act of the defendants is in violation of the ordinances will not enable the plaintiffs to sustain their bill.

A bill in equity cannot ordinarily be sustained for the mere violation of a municipal ordinance. The threatened .act of violation must amount to a nuisance, if done. 13 Am. and Eng. Encyc. 401; The Mayor of Manchester v. Smyth, 64 N. H. 380; President and Trustees of the Village of Waupun v. Moore, 34 Wis. 450; Dillon on Munic. Corp., sec. 405.

Nor is a thing a nuisance merely because a municipal ordinance declares it to be such. Hutton v. City of Camden, 10 Vroom, 122; 23 Am. Rep. 212; Ex Parte O’Leary, 65 Miss. 180; 7 Am. St. Rep. 640; Jackson v. Castle, 82 Maine, 579; Pine City v. Munch, 42 Minn. 342.

But the State may declare what may, at law, be deemed a nuisance, Metropolitan Board of Health v. Heister, 37 N. Y. 661; 23 Am. Rep. 212; note. Dillon on Munic. Corp. 1, sec. 93.

This State has declared, B. S., oh. 4, sec. 93, par. VIII, that buildings erected contrary to the ordinances for which this section provides, are nuisances.

The court in equity at common law has jurisdiction to restrain nuisances, and has specific jurisdiction in this State “in cases of nuisance and waste.” R. S., eh. 79, sec. 6, par. V.

Therefore it is clear that equity will take jurisdiction for the threatened violation of a municipal ordinance when such violation contemplates an act which amounts to a nuisance in law, not because the act is a violation of the ordinance but because it is a nuisance.

Another question which arises in the discussion of this case is, how and when a municipal corporation may maintain a bill to restrain a nuisance in the violation of an ordinance which constitutes a nuisance. Some cases uphold the right when it appears that the municipality would sustain special damages or be put to additional responsibility by reason of the threatened acts. Coast Co., Applt. v. Mayor, etc., of Spring Lake, 58 N. J. Eq. 586; 51 L. R. A., 657, note; E. & A. R. R. Co. v. Inhbts. of Greenwich, 25 N. J. Eq. 565; Jersey City v. Central R. R. Co., 40 N. J. Eq. 417; Hutchinson Twp. v. Filk, 44 Minn. 536. And when no special damages or additional responsibility was shown, relief was denied. Ward v. City of Little Rock, 41 Ark. 526; 48 Am. Rep. 46; Dover v. The Portsmouth Bridge Co., 17 N. H. 200; Mayor v. Smyth, 64 N. H. 380; Town of Sheboygan v. Sheboygan & Fond du lac R. R. Co. et al., 21 Wis. 675.

But some courts have held that a municipal corporation as the representative of the equitable rights of the inhabitants may enjoin nuisances affecting matters with reference to which a portion of the power of the State has been confided to it. The right is limited to such matters, with respect to other matters, the right depends upon the same conditions as the right of individuals, namely, special damages, etc. 51 L. R. A. 657 supra, note. The Metropolitan City Railway Co. v. The City of Chicago, 96 Ill. 620; 42 Minn. 342, supra; Winthrop v. Farrar, 11 Allen, 398; Watertown v. Mayo, 109 Mass. 315; Taunton v. Taylor, 116 Mass. 254. The Board of Health of the City of Yonkers, Respondent, v. John Copcutt, Applt., 140 N. Y. 12.

This last proposition seems to be logical and sound and would appear to authorize a town to maintain injunction proceedings against threatened nuisances affecting matters of which the State has confided to it either control or regulation.

The prevention of fires is a matter which the State has confided to the town. R. S., ch. 28, sects. 13, 20, 22, 25, 26 to 45 inclusive.

As the violation of the ordinances in the case at bar constituted a nuisance against the public as a violation of a police regulation, the entry must be,

Bill sustained with eosts.

Perpetual injunction to issue.

Case remanded to the court below for a decree in accordance with this opinion.