Chapter 544: Remedies for Certain Nuisances

For the purpose of this chapter place shall include any building, erection or place or any separate part or portion thereof or the ground itself; person shall include any individual, corporation, association, partnership, trustee, lessee, agent or assignee; nuisance shall mean any place as above defined in or upon which lewdness, assignation, prostitution or the illegal manufacture, sale or keeping for sale of intoxicating liquor is conducted, permitted, continued or exists, and the personal property and contents used in conducting or maintaining any such place for any such purpose.

Any person who shall use, occupy, establish or conduct a nuisance as defined in RSA 544:1, or aid or abet therein, and the owner, agent or lessee of any interest in any such nuisance, together with the persons employed in or in control of any such nuisance by any such owner, agent or lessee, shall be guilty of maintaining a nuisance and shall be enjoined as hereinafter provided.

Whenever a nuisance exists the attorney general, the county attorney, or any person who is a citizen of the state or has an office therein, may commence a proceeding in equity in the name of the state, upon the relation of such attorney general, county attorney or person, to abate such nuisance and perpetually enjoin the persons maintaining the same from further maintenance thereof.

Such proceeding shall be in the superior court of the county or judicial district thereof in which the property is located.

At or before the commencement thereof a sworn complaint, containing the names of the parties, the object of the action and a brief description of the property affected thereby and the facts constituting the nuisance, shall be served upon the defendants and filed in the office of the clerk of the superior court for the county, together with an affidavit of such service.

After such filing, application for a temporary injunction may be made to the superior court, who shall grant a hearing thereon within ten days thereafter.

Where such application for a temporary injunction has been made the court may, on application of the complainant, issue an ex parte order restraining the defendants and all other persons from removing or in any manner interfering with the personal property and contents of the place where such nuisance is alleged to exist until the decision of the court granting or refusing such injunction and until the further order of the court.

The restraining order may be served by giving in hand a copy of said order to any person in charge of said place or residing therein, or by posting a copy thereof in a conspicuous place at or upon one or more of the principal doors or entrances to such place.

The officer serving such restraining order may enter on the premises, and shall forthwith make and return into court an inventory of the personal property and contents situated in and used in conducting or maintaining such nuisance.

Any violation of such order, or mutilation or removal of such order so posted, shall be a contempt of court; provided, that such posted order contains a notice to that effect.

A copy of the complaint, together with a notice of the time and place of the hearing of the application for a temporary injunction, shall be served upon the defendants at least five days before such hearing.

If the hearing be then continued at the instance of any defendant the temporary writ as prayed shall be granted as a matter of course.

Each defendant so notified shall give the complainant or his attorney a sworn copy of his answer on or before the date fixed in said notice for the hearing, and shall file the answer with the clerk of the court.

The court may allow additional time for answering; provided, that such extension shall not prevent the issuing of said temporary injunction as prayed for.

The allegations of the answer shall be deemed to be traversed without further pleading.

If upon the hearing the allegations are sustained the court or justice shall issue a temporary injunction without bond, restraining the defendants and any other persons from continuing the nuisance.

Any violation thereof shall be contempt of court, to be punished as hereinafter provided.

If at the time of granting a temporary injunction it shall further appear that the person owning, in control or in charge of the nuisance so enjoined has received five days' notice of the hearing, and such person shall not show that the nuisance complained of has been abated, or that he proceeded forthwith to enforce his rights under the provisions of RSA 544:41, the court or justice shall forthwith issue an order closing the place against its use for any purpose until final decision shall be rendered on the application for a permanent injunction.

Such order shall also continue in effect for such further period any restraining order already issued, or, if not so issued, shall include such an order restraining for such period the removal of or interference with the personal property and contents located thereat or therein, as hereinbefore provided.

The owner of any real or personal property so closed or restrained, or to be closed or restrained, may appear at any time between the filing of the complaint and the hearing on the application for a permanent injunction, and, upon payment of all costs incurred and upon filing a bond with sureties to be approved by the clerk in the full value of the property to be ascertained by the court conditioned that such owner will immediately abate the nuisance and prevent the same from being established or kept until the decision shall have been rendered on the application for a permanent injunction, the court, if satisfied of the good faith of the owner and that, with reasonable care and diligence, such owner could not have known of the illegal use, shall deliver such real or personal property or both to the respective owners thereof, and cancel or refrain from issuing any temporary restraining orders.

The release of any real or personal property under the foregoing provision shall not release it from any judgment, lien, penalty or liability to which it may be otherwise subjected by law.

The proceeding shall be in order for trial at the first term.

Evidence of the general reputation of the place or an admission or finding of guilt of any person under the criminal laws against prostitution, lewdness or assignation at any such place shall be admissible for the purpose of proving the existence of said nuisance and shall be prima facie evidence thereof and of knowledge of and of acquiescence and participation therein, on the part of the person or persons charged with maintaining said nuisance, as herein defined.

If the complaint is filed by a private person it shall not be dismissed except upon a sworn statement by the complainant and his attorney, setting forth the reasons why the proceeding should be dismissed, nor unless the dismissal is approved by the county attorney in writing or in open court.

If the court is of the opinion that the proceeding ought not to be dismissed he may direct the county attorney to prosecute it to judgment at the expense of the county.

If the proceeding is continued more than one term any person who is a citizen of the state, or has an office therein, or the attorney-general or the county attorney, may be substituted for the complainant and prosecute to judgment.

If the proceeding is brought by a private person and the court finds that there were no reasonable grounds or cause therefor the costs may be taxed against such person.

If the existence of the nuisance be established upon the trial a judgment shall be entered perpetually enjoining the defendants and any other persons from further maintaining the nuisance, and the defendants from maintaining such nuisance elsewhere within the state.

If any person shall break and enter or use a place so directed to be closed he shall be punished as for contempt as provided herein.

If the existence of the nuisance be admitted or established as provided herein, or in a criminal proceeding in the superior court, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the place of all the personal property and contents used in conducting the nuisance, and not already released under authority of the court as provided in RSA 544:20, and shall direct the sale of such thereof as belong to the defendants notified or appearing, in the manner provided for the sale of chattels upon execution.

Such order shall also require the renewal for one year of any bond furnished by the owner of the real property as provided in RSA 544:20, or, if not so furnished, shall continue for one year any closing order issued at the time of granting the temporary injunction, or, if no such closing order was then issued, shall include an order directing the effectual closing of the place against its use for any purpose, and so keeping it closed for a period of one year unless sooner released.

The owner of any place so closed and not released under bond as herein provided may appear and obtain such release in the manner and upon fulfilling the requirements hereinbefore provided.

Owners of unsold personal property and contents so seized may appear and claim the same within ten days after such order of abatement is made and prove innocence of any knowledge of said use thereof and that with reasonable care and diligence they could not have known thereof.

If such innocence be so established such unsold personal property and contents shall be delivered to the owner; otherwise it shall be sold as hereinbefore provided.

Every defendant in the action shall be presumed to have had knowledge of the general reputation of the place.

For removing and selling the personal property and contents the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution; and for closing the place and keeping it closed a reasonable sum shall be allowed by the court.

In case the existence of such nuisance is established in a criminal proceeding in a court not having equitable jurisdiction it shall be the duty of the county attorney to proceed promptly under this chapter to enforce the provisions and penalties thereof.

The finding of the defendant guilty in such criminal proceedings, unless reversed or set aside, shall be conclusive as against such defendant as to the existence of the nuisance.

The proceeds of the sale of the personal property, as provided herein, or so much thereof as may be necessary, shall be applied in payment of the costs of the action and abatement, including the complainant's costs. The balance of all money collected hereunder shall be paid to the county treasurer.

A party found guilty of contempt under the provisions of this RSA 544 shall be guilty of a misdemeanor if a natural person, or guilty of a felony, if any other person.

If a tenant or occupant of a building or tenement, under a lawful title, uses such premises or any part thereof for any of the unlawful purposes enumerated herein such use shall annul and make void the lease or other title under which he holds and, without any act of the owner, shall cause the right of possession to revert to him, and he may, without process of law, make immediate entry upon the premises.