Waterbury evening Democrat., 1894-03-26
JUDGE WARMERS FINDING.

eouted For violating the Fire ordinance
but an Injunction Shall Not bsrGranted
Because Public or Common Nuisance
Was Not Established. -
The following is the full text of Judge
Warmers decision in the celebrated Miller
injunction case -, =
City of Waterbury VS. Miller, District of
Waterbury, March 20, 1894.
Finding on motion of the defendont to
dissolve the temporary injunction granted
IN the above entitled cause finds. Thecourt
the following facts:
The plaintiff is municipal corporation
located in the district of Waterbury. The
defendant is the owner of certain wooden
building situated on South Main street in
the city of Waterbury and known as num-
Der 43 South Main street, which building
is within the fire district of said city. On
the 22d day of February, 1894, the build
ing was partially consumed by fire and
the roof covering of the same was destroyed
to the extent of two-ffths of the same
thereof. Shortly afterwards and before
the defendant made any effort to repair the
said roof or roof covering of the said
building he made application to the mayor,
fire marshal and board, of aldermen of the
plaintiffs city for. a license or permit au-
thorizing him Ito, repair his said building
by placing upon the said two -ffths, of the
roof proper roof or roof covering of tin
or some other fire proof material, which
application was in all respect in conformity
with the ordinances of the plaintiffs city.
And said application was refused by said
mayor, fire marshal and board of aldermen
of said city, The defendant afterwards
threatened that he would make the
necessary repairs on the roof and
roof covering of said building
by placing thereon a roof covering of the
best quality Of tin, iron or steel or some
other fire proof material. Before said 22d
covering of said roof was composed of
what is commonly known as steel roofing
No claim was made to the court and no
evidence offered that the defendant had
attempted or threatened to make any re-
pairs to his said building other than to
repair the roof covering of the same as
heretofore stated. Upon the foregoing
facts the plaintiff claims an injunction
restraining the defendant from proceeding
with his said repairs as he threathens to
do, because he has not obteined a permit
or license therefor from the poper board
and in accordance with the ordinance of
the laintiff's city and for the further rea-
son that if said repairs aressmade they will
be made in violation of section 49, page
JAG, of the charter and ordinances of the
city of Waterbury, and therefore of sec
ton SO, page 40, will be held and deemed
a common nuisance.
The first question that presents itself is:
Can an injunction be granted Can conrt
of equity interfere and restrain the defend
ant from performing an act which in itself
is legal and proper and only made illegal
and improper because the defendant did
not first obtain permit or license to do
the act? The general principal underlying
the granting of injunctions is that they
may be granted when the petitioner has no
adequate remedy at law.
Has the petitioner an adequate remedy
at law in this case think it has. Section
38, page 141, of the charter and ordi-
nances of the city provides: every per-
son who shall violate or aid in violating
any of the provisions of sections %, %,
"a, 25, 26 or 35 of this ordinance and every
owner or lessee or agent of the owner or
lessee whe shall direct or knowingly con-
sent to any violation of said provision, in
premises in his charge, shall forfeit and
pay penalty of not less than S25 nor
more than 500 for every week in which
any building or chimney is suffered by
him to remain In violation of any of said
the fire department or fire marshal may
notify any person engaged in violating any
of said sections to desist and every person
so notified shall forfeit and pay penalty
of SIS for every day he shall thereafter per-
sist in snch violation. Sec ion SO, page
40, also provides way and manner in
which the nuisance Gf it is a nuisance)
may be abated. These several legal
remedies would seem to be sufficient to
warrant the court in sustaining the appli-
cation to dissolve the injunction in the
case.
But it may be said that the circum.
stances of the case bring it within that
class of cases where injunctions are al
lowed to abate nuisances, for it claimed
that if the defendant makes the repairs he
threatens to make they will constitute a
nuisance. No claim is made by the plant
if and no evidence offered that they will
create a nuisance, except the bare fact that
if any person erects a chimney, wall,
building, or addition--to any building or re-
move any building in violation of the %,
%, "a, rs, 26 and 35th sections of the ordi-
nance relating to fires, such chimney,
wall. building, addition3 tot building, or
illing removed, shall be held and
deemed a common nuisance. See section
SO, page 40, of the charter and ordinances
of the city of Waterbury. In other words,
to apply the ordinance to the case, if the
defendant does not make the repairs of his
roof covering of tin, slate or some other fir
proof material and before he makes such
repairs, does not obtain a license or per-
NIT therefor that then that part of his
building so repaired shall be held and
deemed common nuisance.
Now, it is conceded by the plaintiff that
the repairs which the defendant applied
for permit or licence to make, were to
comply with the ordinances regulating the
material of which the repairs should be
made, but because apermit or license was
refused him, that such refusal makes that
part of the building a common nuisance,
provided he makes the repairs. I think the
law is otherwise and that public or COM
mon nuisance must be established by clear
evidence before an injunction sholl be
granted.
Sixteen cases were here quoted touch
ing on the case.)
Being of the opinion that an injunction
ought not to be granted for the reasons al
ready stated. it is unnecessary to enquire
further into the claims of the parties.
The application for the dissolution of
the injunction is allowed, and the injunc-
ton is dissolved.
ARTHUR d. WARNER,
Judge of the Court of Common Pleas for
Litch6eld County, holding said court.
ia oailor UVerDOard,