Baumgartner v. Hasty

• Citation: 100 Ind. 575
• Decision Date: 13 March 1885
• Docket Number: 11,704
• Parties: Baumgartner v. Hasty
• Court: Supreme Court of Indiana

100 Ind. 575

Baumgartner v. Hasty

No. 11,704

Supreme Court of Indiana

March 13, 1885

From the Huntington Circuit Court.

Judgment reversed, with instructions to overrule the demurrer to the answer, and to proceed in accordance with this opinion.

B. F Ibach and L. P. Boyle, for appellant.

J. B Kenner and J. I. Dille, for appellee.

OPINION

Elliott, J.

The controlling question in this case arises upon the ruling on the demurrer to the appellant's answer. The appellee's complaint charges that the appellant wrongfully and maliciously destroyed a covering erected over an ice box on the premises of the appellee. The appellant answered by way of justification, alleging that he was the marshal of the city of Huntington; that the appellee was the owner of a lot in that city; that the lot was situated in a part of the city in which the common council had by ordinances prohibited the erection of wooden buildings; that the appellee, in violation of the provisions of the ordinances, did erect a frame building on the lot; that he was requested to remove the building, and refused to do so, whereupon the appellant notified the mayor, in accordance with the provisions of the ordinance, and that officer issued to him a warrant, commanding him to remove the building, and acting under this warrant, he did remove it, using all proper care and doing no unnecessary damage. It is also alleged that the appellant acted without malice in removing the building; that the removal was necessary, because the building was erected in such close proximity to other buildings as to greatly endanger their safety, and that the danger so created was an imminent one.

Two ordinances of the city, duly enacted and published, are set forth. These ordinances contain provisions making it unlawful to erect wooden buildings within the prescribed limits, imposing upon the marshal the duty of notifying the mayor of a violation of the ordinance, and providing that the mayor, upon the report of the marshal, shall issue his warrant to take down and remove the building.

A wooden building is not in itself a nuisance, but when erected in a place prohibited by law, and where it endangers the safety of adjoining property, it may become a nuisance. If the locality and character of such a building do endanger the safety of surrounding buildings, then it may be treated as a nuisance, and a governmental body, having authority to legislate upon such subjects, may prohibit its erection in places where it would endanger the safety of surrounding property. There are many things that are not nuisances per se, but which become such when placed in locations forbidden by law, and where they essentially interfere with the enjoyment of life or property. In a work of excellent standing it is said: "While a man has a right to follow his own tastes and inclinations as to the style and character of the building that he will erect upon his own land, yet he has no right to erect and maintain there a building that is dangerous, by reason of the materials used in, or the manner of its construction, or that is inherently weak or in a ruinous condition and liable to fall and do injury to an adjoining owner or the public. Such a building on a public street is a public nuisance, and is a private nuisance to those owning property adjoining it." Wood's Law of Nuisance, section 109. It must rest with the governmental authorities of the locality to determine in what places wooden buildings shall not be erected, for courts can not exercise legislative functions in such matters. For the courts to undertake to prescribe in what localities in towns and cities wooden buildings shall be erected, would be to usurp governmental powers which are delegated to the local authorities. It would be to take upon themselves the government of municipal corporations, and this no one will assert they have any right to do. Where, therefore, a valid municipal ordinance prohibits the location of wooden buildings within certain limits, and it appears, as it does here, that the building is located within the prohibited district, and endangers the safety of surrounding property, it may properly be treated as a public nuisance, and as such abated. We are not unmindful of the rule that a municipal corporation has no power to treat a thing as a nuisance which can not be one; but while we recognize this rule, we also recognize the equally well settled rule that it has the power to treat as a nuisance a thing that from its character, location and surroundings, may, and does, become such. In discussing this general subject it was said, in a recent case: "But in doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering, their action, under such circumstances, would be conclusive of the question." North Chicago City R. W. Co. v. Town of Lake View, 105 Ill. 207; S. C., 44 Am. R. 788. The chancellor, in the course of a discussion of the question in the famous case of Hart v. Mayor, etc., 3 Paige 213, said: "It therefore becomes necessary, in all populous towns and crowded harbors, to regulate such matters by police ordinances. And public policy requires that the corporation of the place, or conservators of the port, should not be disturbed in the exercise of those powers, unless they have clearly transcended their authority." Speaking upon the same subject, another court has said: "The proper exercise of the police power and the efficient preservation of the public health could hardly be accomplished, if every individual or any set of individuals can determine what is properly to be regarded as a nuisance and what are measures of salubrity. The various tastes and habits and the conflicting hygienic theories of different persons would, if it were necessary to be guided by them, prevent the municipal authorities from adopting any fixed and certain plan. It is, therefore, right and proper that they should be vested with the authority to decide what comes within the 'legal notion' in that regard." Mayor, etc., v. Gerspach, 33 La.Ann. 1011. But we have not time to make further extracts from the adjudged cases, but content ourselves with referring to some of the many cases in which similar declarations are made: Baker v. City of Boston, 12 Pick. 184; First Municipality v. Blineau, 3 La.Ann. 688; Kennedy v. Phelps, 10 La.Ann. 227; Mayor, etc., v. Hoffman, 29 La.Ann. 651.

Our statute grants very comprehensive powers to municipal corporations respecting the abatement of nuisances, and if a wooden structure, erected in a place where it endangers surrounding property, can be regarded as a nuisance, there can be no question as to the right of the municipal corporation to cause its removal. But it is settled, without dissent, that without a special grant of authority public corporations may, as a common law power, cause the abatement of nuisances, and if the nuisance can not otherwise be abated, may destroy the thing which constitutes it. The authorities do, indeed, go much further, for they declare that it is the duty of the corporation to abate public nuisances. It is one of the oldest of the common law rules, that an individual citizen may, without notice, abate a nuisance, and, if it is necessary to effectually abate it, destroy the thing which creates it. Of the authorities sustaining this doctrine we cite only a few: Lodie v. Arnold, 2 Salk. 458; Hart v. Mayor, etc., 9 Wend. 571; S. C., 24 Am. Dec. 165; Viner Abridg. Title Nuisance; 1 Hawkins P. C., chap. 32, s. 12; 3 Black. Com. 5; Broom Com. 222; Cooley Torts, 46; Northrop v. Burrows, 10 Abbott Pr. 365; Jones v. Williams, 11 M. & W. 176; Lanfear v. Mayor, etc., 4 La. 97; S. C., 23 Am. Dec. 477; Harvey v. De Woody, 18 Ark. 252; Ferguson v. City of Selma, 43 Ala. 398; People v. Vanderbilt, 28 N.Y. 396; State v. Flannagan, 67 Ind. 140; City of Indianapolis v. Miller, 27 Ind. 394; Grove v. City of Fort Wayne, 45 Ind. 429 (15 Am. R. 262).

These authorities, running back as they do into the early years of the common law, and extending in an unbroken line to the present time, prove that not only may a governmental corporation abate a nuisance by the destruction of the thing constituting it, but so, also, may a private individual. It is, therefore, not the delegation of a new or an extraordinary power to authorize municipal corporations to abate nuisances by removing or destroying the thing which creates it. A man has no right to build a wooden house in a place prohibited by law, and thus endanger the safety of the person or property of others. He has neither a legal nor a moral right to do an illegal act on his own premises, which puts in jeopardy the person or property of another. There can be no acquisition of a right by the performance of an illegal act. In removing a building erected in violation of law, and in a situation where it imperils person or property, no private right is invaded, because none could grow out of the illegal act.

There is some conflict in the authorities as to whether a municipal corporation possesses the inherent power to prohibit the erection of wooden buildings within prescribed limits and to cause their removal. Judge Dillon's opinion is that the power does inhere in all municipal corporations, for we find him writing that cities may, "where this is consistent with the general and special legislation applicable to the municipality, establish fire limits, and prevent erection therein of wooden buildings." 1 Dillon's Municipal Corp., 3d ed., sec. 405. The Supreme Court of Michigan, in speaking of ordinances similar to those here under...