Botchlett v. City of Bethany, 41440

• Decision Date: 22 February 1966
• Docket Number: No. 41440,41440
• Citation: 416 P.2d 613,1966 OK 39
• Parties: Jerry BOTCHLETT, Plaintiff in Error, v. The CITY OF BETHANY, Oklahoma, a Municipal Corporation, et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 613

416 P.2d 613 1966 OK 39 Jerry BOTCHLETT, Plaintiff in Error,
v.
The CITY OF BETHANY, Oklahoma, a Municipal Corporation, et
al., Defendants in Error. No. 41440. Supreme Court of Oklahoma. Feb. 22, 1966.
Rehearing Denied April 19, 1966.
Second Petition for Rehearing Denied July 5, 1966.

Syllabus by the Court

1. The right of an individual to use his property as he pleases is a qualified, as distinguished from an absolute, right. It is at all times subject to the authority of the state, under its police power, to fairly and reasonably restrict the use of such property to the end that the public health, safety, and welfare will be promoted and such uses of private property prevented as would injuriously affect the rights of others in the use and enjoyment of their property.

Page 614

2. The proper and reasonable exercise by municipalities of authority to restrict the use of property within their limits as conferred by constitutional and lawful legislative enactment is authorized under the police power.

3. The classification of city property for zoning purposes is primarily a matter to be determined by legislative body of a city whose judgment expressed in a particular case should not be overridden by the judiciary unless it is unreasonable, arbitrary, or constitutes an unequal exercise of police power.

Appeal from the District Court of Oklahoma County; John A. Brett, Acting District Judge.

Appeal by plaintiff below from a judgment of the district court denying injunctive relief but granting defendants a permanent injunction based upon their cross-petition. Affirmed.

John H. Porter, Oklahoma City, for plaintiff in error.

Wilbert G. Smith, Oklahoma City, for defendants in error.

WILLIAMS, Justice.

Plaintiff in error as plaintiff in each of two separate actions in the trial court filed his petition wherein he alleged that the City of Bethany and its co-defendants were interfering with his lawful use of his real property by continuous and harassing arrests for alleged violations of a city zoning ordinance; that the said ordinance is constitutionally invalid insofar as it attempts to restrict plaintiff's use of his property in conformity with the zoning of the area for single family residential use only; that plaintiff's use of his property for a contractor's storage yard has been continuous since 1955, ante-dating the effectiveness of the city ordinance; and that plaintiff has a vested interest in the continuation of his business on his property and is entitled to an injunction preventing defendants from imposing criminal charges or complaints against him for using his property in a manner not conforming to the zoning ordinance.

The two actions instituted by plaintiff were so similar in nature and parties that with consent of the parties they were by the trial court consolidated and tried as one case. At the conclusion of the evidence the trial court denied plaintiff's prayer for relief and, as prayed by defendants in their cross-petitions, enjoined the plaintiff from using his property as a storage yard for building materials.

As a part of its judgment, the trial court made findings of fact of effect that prior to plaintiff's purchase of the concerned property, zoning regulations had been enacted by the board of county commissioners which made plaintiff's subsequent use of the property for other than single family residence unlawful; that after plaintiff...