Jackson v. Miller

Decision Date26 April 1905
Citation60 A. 1019,69 N.J.E. 182
PartiesJACKSON v. MILLER.
CourtNew Jersey Court of Chancery

Suit by Philip N. Jackson against Leslie B. Miller, as superintendent of buildings of the city of Newark. On application for preliminary injunction to restrain defendant from threatened destruction of plaintiff's fence. Granted.

Neilson Abeel, for complainant. Malcolm MacLear, for defendant.

EMERY, V. C. Complainant in 1900 erected a wooden fence 20 feet high on the rear of his lots, located in Waverly avenue, in the city of Newark. Two dwelling houses are erected on the front of the lots and within about 25 feet of the fence. At this time there were no ordinances regulating the height of fences, and it does not clearly appear that the premises on which the fence was erected were within the fire limits fixed by the common council. The Revised Ordinances (Revision of 1902), adopted January 3, 1902, by section 100, p. 51, included the premises within the fire limits and provided (section 103, p. 53) that before the erection of any building or part of any building, structure or part of any structure, within these limits, the owner should procure a permit from the superintendent of buildings. By section 105, subd. "c," (page 57), it was provided that "fences of wood shall not be erected over eight feet high"; and section 161 of the Revised Ordinance of 1902 (page 98), provided a penalty of $50 for each violation or failure to comply with any provision of the ordinance for a first conviction, and a fine of $25 for each day's continuance of violation. At the time of the passage of this ordinance there was no special legislative authority giving the city authority to regulate the height of fences. On April 8, 1903, a law was passed (P. L. 513) authorizing the common council of cities to regulate by ordinance the height and material of fences, and to provide for the removal, change, or alteration of all fences, signs, billboards, and advertisements "now or hereafter existing," and the imposition of a penalty of $25 for any violation thereof. On June 19, 1903, an ordinance was passed amending section 105, subd. "c," of the Revised Ordinances of 1902, and providing that the superintendent of buildings should have power to order the removal of any sign, billboard, or fence, when, in his opinion, it shall become dangerous or unsafe, and, in case of failure of the owner to remove on notice, the superintendent was authorized to remove the same and enter the premises to do so. This ordinance also provided that "no fence shall be erected over eight feet high." On September 5, 1903, a further ordinance was passed, giving the superintendent the power to order the repair or removal of any sign, billboard, or fence which in his opinion is, or is likely to become, dangerous or unsafe, or is erected or maintained in a manner contrary to the ordinances of the city, and to remove the same after notice. On failure of the owner to remove, the superintendent was authorized to do so, and to enter the premises for that purpose. This ordinance provided no penalty for its violation. Before the bill was filed, the defendant, as superintendent of buildings, served a written notice on complainant that he had erected and maintained a fence over eight feet high, "which is contrary to and in violation of the city ordinance," and notifying complainant to have said fence removed within five days, or that the ordinance would be enforced. The bill charges, and the answer admits, that the fence referred to in the notice is the fence in question, and that defendant, the superintendent of buildings, intends to remove the fence. The notice to the owner to remove did not demand the removal because the fence was unsafe or dangerous; but the answer and affidavits set up that it is dangerous and unsafe, not by reason of the unsafe character of the structure itself, but because of danger in case of fire in the vicinity. This allegation is fairly contested by the affidavits filed in rebuttal, and, so far as any right of removal is based on the ground that the fence is unsafe or dangerous on this account, it is admitted on the part of the defendant that complainant had a right to have the injunction retained until final hearing. The question mainly argued was the right of the superintendent to enjoin the removal of the fence on the ground that it was maintained contrary to the ordinance. The fence having been erected prior to the passage of any ordinance regulating the height of wooden fences, or any law authorizing such ordinances, the complainant has plainly the right to raise these questions in relation to the ordinance:

First, whether the fence is maintained in violation of the terms of any ordinance. The first ordinance (Rev. Ord. 1902), directing that "fences of wood shall not be erected over eight feet high," was prospective only, and so was the amendment of June 19, 1903, that "no fence shall be erected over eight feet high." The ordinance of September 5 1903, authorized the superintendent to remove any fence erected or maintained in a manner contrary to the ordinances of the city; but, as the previous ordinances did not in terms prohibit the maintenance of fences more than eight feet high already erected, the fence in question, apparently, was not maintained contrary to the ordinance. The general rule is that mere police legislation of this character operates only prospectively, and does not demand the sacrifice of existing physical property. Freund, Police Power, § 538; Buffalo v. Chadeayne, 134 N. Y. 163, 31 N. E. 443.

Second. The ordinance regulating the height of wooden fences was passed after the erection of the fence, and, the fence not being in itself a nuisance which required immediate abatement in the interest of public safety, the owner is entitled to test the validity of the ordinance as affecting his property, if it should be held to extend to the...

To continue reading

Request your trial
2 cases
  • Bergen County v. Melillo, A-14.
    • United States
    • New Jersey Supreme Court
    • 24 October 1949
    ...before an addition which in itself meets the fire-resistant requirements of new construction be allowed. In Jackson v. Miller, 69 N.J.Eq. 182, 60 A. 1019, 1021 (Ch.1905), in a controversy concerning the removal of a high wooden fence provided for by ordinance, the court said: ‘The general r......
  • Walker v. Hill
    • United States
    • New Hampshire Supreme Court
    • 2 May 1905

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT