President of Waupun v. Moore
Wisconsin Supreme Court
APPEAL from the Circuit Court for Fond du Lac County. ■ An ordinance of the village of Waupun prohibits the erection of wooden buildings within certain specified limits therein, and imposes a penalty of fifty dollars for a violation thereof.
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APPEAL from the Circuit Court for Fond du Lac County. ■ An ordinance of the village of Waupun prohibits the erection of wooden buildings within certain specified limits therein, and imposes a penalty of fifty dollars for a violation thereof. It also provides that it shall be the duty of the president and trustees of the village, or either of them, to cause any person who is about to violate the same “to be restrained by injunction before a.court having competent jurisdiction.” This action was brought to restrain the defendant from erecting a wooden building within the prohibited limits; and a…
1Opinion of the CourtLyoN, J.
The jurisdiction of courts of equity, in proper cases, to restrain the erection or maintenance of nuisances, public or private, is undoubted. But the defendant was not about to erect a nuisance. If it is unlawful for him to erect the building in question, it is made so by the ordinance alone. Without the ordinance, no one can successfully dispute his right to do so. The question is, therefore, Will a court of equity enjoin an act which would otherwise be lawful, but which is made unlawful by a village ordinance or by-law ?
We find the principle stated in several very respectable authorities,…
2Cases cited2 opinions
- Mayor of Hudson v. ThorneNew York Court of Chancery · 1838
- Schuster v. Metropolitan Board of HealthNew York Supreme Court · 1867
3Cited by25 opinions
- First National Bank v. SarllsIndiana Supreme Court · 1891
- City of Janesville v. CarpenterWisconsin Supreme Court · 1890
- City of New Orleans v. Liberty Shop, Ltd.Supreme Court of Louisiana · 1924
- Holzbauer v. RitterWisconsin Supreme Court · 1924
- Board of Health v. VinkMichigan Supreme Court · 1915
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