Mayor of Manchester v. Smyth

Allen, J. 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 fire. 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 offence, 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 *384 and maintenance of nuisances, public and private. To warrant the application of this restraining power, the danger of irreparable mischief or injury must be imminent and clearly made to appear. Wason v. Sanborn, 45 N. H. 169 ; Perkins v. Foye,. 60 N. H. 496. Thet act sought to be restrained must be one which, if performed or executed, will inevitably bring on the danger threatened by it. It must be a nuisance in fact, and not one created solely, by statutory enactment or municipal ordinance. Waupun v. Moore, 34 Wis. 450. In this case, the defendant’s proposed raising and enlargement of his building, if carried to completion, would neither be a nuisance in fact, nor the occasion of irreparable mischief or injury. The ground of complaint is, that the danger from fire will be increased, but the case finds that the proposed change will neither increase nor diminish that danger. But for the ordinance prohibiting and restricting the change it would be lawful, and the defendant’s right to carry out the undertaking would be unquestioned. With these views, it is not necessary to, consider whether the ordinance, a threatened violation of which is complained of, is or is not authorized by the charter of the city or the statute upon the subject. Bill dismissed. Smith and Clark, JJ., did not sit: the others concurred.