Shelton v. Lentz

Citation178 S.W. 243,191 Mo.App. 699
PartiesW. F. SHELTON, JR., Appellant, v. MARGARET L. LENTZ et al., Respondents
Decision Date02 July 1915
CourtCourt of Appeal of Missouri (US)

Appeal from Dunklin Circuit Court.--Hon. W. S. C. Walker, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Jones & Jones for appellant.

The court erred in dissolving the temporary writ of injunction and overruling plaintiff's motion for new trial: (1) Because the Board of Aldermen of the city of Kennett had the express power to pass an ordinance establishing fire limits and regulating the kind and character of buildings to be erected within such limits in conformity with law. R. S 1899, sec. 5958, Laws 1895, page 65; R. S. 1909, sec. 9372. (2) Because the ordinance as passed by the Board of Aldermen was in conformity with the law and charter of the city of Kennett and was a reasonable exercise of its power, and was in pursuance of express legislative authority. (a) Ordinances passed under express legislative authority are not unreasonable and where the reasonableness of a municipal ordinance is in issue all reasonable doubts are resolved in favor of the municipality. A large and liberal discretion is allowed muncipal authorities. State ex rel. v Clifford, 228 Mo. 194; Morse v. Westport, 110 Mo. 508; St. Louis v. Weber, 44 Mo. 550; Stafford v. Railroad, 110 Wis. 331; St. Louis v Kellman, 235 Mo. 693; Waterworks Co. v. Webb City, 78 Mo.App. 422; Chimine v. Baker, 75 S.W. 330; 28 Cyc. 389; Doniphan v. White, 110 Mo.App. 507; Tarkio v. White, 120 Mo. 9; St. Charles v. Elsner, 155 Mo. 681; Skinker v. Heman, 148 Mo. 355; Centralia v. Smith, 103 Mo.App. 438; Eichenlaub v. St. Joseph, 113 Mo. 405. (b) Private encroachments upon public rights are not to be favored by construction. Elec. Light Co. v. Alpena, 130 Mich. 413; Traverse City Gas Co. v. Traverse City, 130 Mich. 17; Philadelphia v. Western Union, 11 Phil. (Pa.) 327; Stafford v. Railroad, 110 Wis. 331; Rogers Park Water Co. v. Fergus, 180 U.S. 624; Danville Water Co. v. Danville, 180 U.S. 619; Freeport Water Co. v. Freeport, 180 U.S. 587; 28 Cyc. 388; Kerz v. Water Co., 139 Ill.App. 598. (3) Because the permit granted by the board to Mrs. Lentz is invalid and constituted no defense, being by mere entry upon council record, and wholly unauthorized. Chimine v. Baker, 75 S.W. 330; 28 Cyc. 387; Eichenlaub v. St. Joseph, 113 Mo. 402; Zimmerman v. Railroad, 154 Mo.App. 296; Ristine v. Clements, 31 Ind.App. 338; People v. Latham, 203 Ill. 9; Trenton v. Coyle, 107 Mo. 194; Saxton v. Beach, 50 Mo. 488; Saxon v. St. Joseph, 60 Mo. 158; Thompson v. Boonville, 61 Mo. 283; People v. Mount, 186 Ill. 560; Railroad v. Chicago, 174 Ill. 439; Hearst's Chicago American v. Spiss, 117 Ill.App. 436; Terre Haute v. Lake, 43 Ind. 480; Michael v. Trenton, 163 Ala. 425. (4) Because plaintiff below and appellant here was an adjoining property owner and as such had a special interest in the enforcement of the fire ordinance which will afford him injunctive relief. Zimmerman v. Railroad, 154 Mo.App. 301; Schopp v. St. Louis, 117 Mo. 131; Caskey v. Edwards, 128 Mo.App. 239; Cummings v. St. Louis, 90 Mo. 259; Atterbury v. West, 139 Mo.App. 180; Chimine v. Baker, 75 S.W. 330.

Fort & Zimmerman for respondent.

(1) Respondent's demurrer to the petition should have been sustained, because it states no facts authorizing injunctive relief. A proceeding by injunction is a civil action and the defendant must necessarily be subject to a civil liability, yet a municipal ordinance cannot create a civil liability against a person violating it and in favor of persons injured by its violation, for this is a power which belongs alone to the sovereign power of the State. The only liability which attaches to the infraction of such an ordinance is the penalty it imposes. Moran v. Company, 134 Mo. 650; Loth v. Company, 197 Mo. 357; Carpenter v. Company, 103 Mo.App. 498. (2) Injunction will not lie to restrain, or prevent, the erection of a building within the fire limits of a city, forbidden by municipal ordinance. Warren v. Cavanaugh, 33 Mo.App. 102; Mason v. Deitering, 132 Mo.App. 26; Rice v. Jefferson, 50 Mo.App. 464; Caskey v. Edwards, 128 Mo.App. 241. (3) Respondent concedes that the permit issued to her authorizing her to build the house mentioned in this suit was of no legal validity and is no defense in this suit. R. S. 1909, sec. 9372; Eichenlaub v. City, 113 Mo. 395-403; Dougherty v. City, 110 Mo.App. 626.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

This is a suit in equity to enjoin the erection of a "brick veneer" building within the fire limits of the city of Kennett, Missouri, contrary to the provisions of an ordinance of said city. Defendant Mrs. Lentz is the owner of lot 43 of block 12 of the city of Kennett, and at the time of the institution of this suit was proceeding to erect thereupon a building of the character mentioned, and had partly constructed the same. Plaintiff is the owner of property in this block and of other buildings in the vicinity. The court below issued a temporary injunction, but upon a hearing upon the merits found the issues in favor of defendants, dissolved the temporary injunction and dismissed plaintiff's bill; whereupon plaintiff appealed to this court.

The building which Mrs. Lentz was proceeding to erect was to consist of a wooden frame-work placed upon a concrete foundation, with the outer walls thereof veneered with brick, i. e., having one layer of brick outside of and coating the frame structure. A municipal ordinance prohibits, within a certain district, the erection of any frame building or of any building "the outer walls of which shall be composed in whole or in part of wood" or of any building "the outer walls of which shall be veneered or faced with metal or brick (commonly called brick-veneer.)" And it is admitted that the building whose erection is sought to be restrained is situated within the fire limits as fixed by ordinance, being in the extreme southwest corner thereof.

It appears that block 12 is bounded upon the west by Jackson street, which extends north and south, upon which lot 43 fronts; and that this block extends east to Main street. The evidence is that plaintiff owns a frame building in block 12, fronting upon Jackson street, about fifty feet from the building here in question, and it also appears that he owns two frame buildings on the east side of block 12 fronting upon Main street, as well as other property in an adjoining block. Plaintiff's frame buildings are old buildings which were erected prior to the extension of the fire limits to include this portion of the city.

Though the erection of a building of the character mentioned, within the fire limits aforesaid, is forbidden by ordinance, Mrs. Lentz obtained a so-called permit from the municipal authorities purporting to authorize her to erect such a building; and having obtained this she proceeded with the erection thereof until halted by the issuance of the temporary injunction.

The action proceeds upon the theory that plaintiff will suffer a peculiar and irreparable injury by the erection of the building in question, in that it will greatly endanger his property, depreciate the value thereof and increase the insurance thereupon. Such are the allegations of the petition; and it is alleged that the legal authorities of the city have refused to prohibit the violation of the ordinance forbidding the construction of such buildings within the fire limits, and that plaintiff is without remedy at law.

The answer admits that defendant, Mrs. Lentz, is proceeding to erect a building of the character mentioned in the petition, upon the premises in question, but avers that she is within her legal rights in so doing and that plaintiff is not entitled to the relief sought. After admitting the existence of the ordinance pleaded in the petition, and that the building in question is within the fire limits of the city, it is averred that the ordinance prohibiting the erection within such fire limits of any "brick veneer" building is "unreasonable, arbitrary, unconstitutional and void, and that the city of Kennett in passing said ordinance went beyond the power granted to it by its charter and did not exercise such powers as were granted to it in a reasonable manner."

The record does not disclose the theory pursued by the trial court in dismissing plaintiff's bill. There is no constitutional question in the case. If there were, as a matter of course, we would have no jurisdiction. There is no point made here that we are without jurisdiction by reason of the fact that a constitutional question is involved; and such point would not be good if made for the reason that the answer of defendants below was not such as to raise any constitutional question. The mere allegation that the ordinance is "unreasonable, arbitrary, unconstitutional and void," without pointing out the particular provision or provisions of the Constitution asserted to have been violated thereby, raises no constitutional question whatsoever.

It may be said, however, that the ordinance here involved is altogether unlike that passed upon by the Supreme Court in Hays v. City of Poplar Bluff, 263 Mo. 516, 173 S.W 676, which purported to make it unlawful, within certain established fire limits, to construct buildings of a certain character without having obtained special permission from the mayor and city council. The ordinance before us upon its face purports to prohibit absolutely the erection of buildings of the character mentioned therein, within fire limits. But it appears that the city authorities sometimes granted "permits" to property owners to erect buildings in violation of the ordinance, at least in certain s...

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