O'Bryan v. Highland Apartment Co.

Decision Date28 February 1908
Citation108 S.W. 257,128 Ky. 282
PartiesO'BRYAN et al. v. HIGHLAND APARTMENT CO.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"To be officially reported."

Injunction by the Highland Apartment Company against Nettie C O'Bryan and others to enjoin the building of a stable, in violation of building ordinance enacted for fire protection. From an order continuing a temporary restraining order defendants appeal. Affirmed.

Gibson Marshall & Gibson, for appellants.

J. W S. Clement, for appellee.

LASSING J.

Appellee is the owner of a large stone and brick building, used as an apartment house, situated on Cherokee Road, in Louisville. The building occupies practically the entire lot owned by appellee, and runs from the street back to an alley. On the west of this building appellants own a lot which likewise runs from the street back to the alley. Upon a portion of their lot, fronting on the street, is a residence, in the rear of which is a frame stable. There is a vacant space or lot between appellants' residence and appellee's building. This space is 30 or more feet in width. Some time prior to December 6, 1907, appellants made application to the building inspector of Louisville for a permit to build a stable upon this vacant lot owned by her, and the permit granting her the right to erect a frame stable thereon was issued to her. Upon learning that such a permit had been issued, appellee protested and sought to have the building inspector revoke the permit. When his attention was called to the fact that the stable, as proposed to be erected, would be within less than 60 feet of appellee's apartment house, the inspector ordered that the work on the stable should be suspended pending investigation. Following the issuing of this order appellants applied for and secured a permit to erect a dwelling upon the vacant lot fronting on the street. Having secured a permit to erect a dwelling, appellants proceeded to build the stable, and appellee applied for and was granted a temporary restraining order, enjoining appellants from building the stable. Following the granting of this restraining order the board of public safety, on application by appellee, took the matter up, and, after a hearing, directed the inspector to cancel the permit to build the stable, and, acting under this order, the permit was canceled by the inspector, and appellants notified of this fact. The temporary restraining order was, upon hearing, continued in force, and the case is now brought before me seeking to have the injunction dissolved.

Four questions are raised: First, that the ordinances upon which appellee bases its contention are unconstitutional; second, that, if the ordinances are not unconstitutional, appellee has no right to maintain the action, but that it must be prosecuted in the name of the city; third, that the permit to erect the stable having been granted, and the work having been begun, it cannot thereafter be revoked; and, fourth, that the ordinances upon which appellee relies do not govern or regulate the character of building which appellants contemplated erecting.

Courts of last resort generally recognize the right of municipalities to pass all reasonable rules and regulations that may be necessary to protect the health and morals of the city, and to make such regulations as may be necessary to prevent the spreading of fires, and protect property within the corporate limits. The exercise of these functions on the part of the municipality is under the police power, and the only restriction and limitation thrown around the act of the municipality in passing such ordinances is that they shall be reasonable. This principle was distinctly recognized by this court in the late case of Tilford, Building Inspector, v Belknap, 103 S.W. 289, 11 L.R.A. (N. S.) 708, 31 Ky. Law Rep. 662, in which Judge Settle, speaking for the court, said: "It goes without saying that, in the exercise of its governmental functions and under the police power, a municipality may enact ordinances for the safety of the public. *** This includes the right to establish by ordinance rules and regulations to prevent the spreading of fires and for the protection of property within the corporate limits, but such rules and regulations must be reasonable." In 8 Cyc. p. 1062, this right of the city to pass such reasonable rules and regulations as are necessary for the protection of property is thus stated: "A city may by ordinance forbid the erection, alteration, or repair of buildings within certain districts or boundaries without denying the equal protection of the law, as such regulations are within the police power." This right, qualified only to the extent that the rules and regulations shall be reasonable, is now recognized by courts of last resort with such a degree of uniformity as to justify the conclusion that it is general. In determining whether or not the ordinances under consideration are unconstitutional, the only proper and legitimate subject of inquiry is: Are they reasonable? If they are reasonable, then the municipality clearly had the right, in the exercise of its police power, to pass them, and the wisdom of its so doing is not a subject of judicial investigation. The law presumes that in the enactment of public ordinances the municipality, through its legislative board, acts in good faith and for the best interests of its citizens; and therefore, so long as the ordinances are reasonable, a citizen may not complain, even though by reason thereof his unlimited and unrestricted use and enjoyment of his property is, to some extent, abridged or denied. The idea of absolutism in the use and enjoyment of our property has long since been exploded, and the now well-recognized doctrine is that that use and enjoyment of our property guaranteed by the Constitutions, state and federal, means such use and enjoyment as will not unnecessarily endanger or destroy the property of others. The ordinances involved in this controversy are sections 15, 64, 65, and 70. Section 15 provides: "That no excavation shall be commenced, no wall, structure, building, part or parts thereof, or sign board exceeding ten feet in height, shall be built, constructed, altered, repaired or removed in said city until a permit has been issued for the proposed work by the building inspector." Section 64 provides: "No frame dwelling, building, or structure shall be erected in the city of Louisville without a written permit from the building inspector, and it is further provided that no frame dwelling, building or structure shall be erected within the 'fire limits' of the city of Louisville." Section 65 provides: "No frame, veneered, iron clad or any building the inclosing walls of which are constructed of combustible material, shall be erected, moved or remodeled within the 'fire limits' of the city of Louisville, or repaired when damaged to the extent of fifty per cent--exclusive of the foundation--of its value by fire or decay, and no such building shall be erected, or moved without the 'fire limits' of the city of Louisville within sixty feet of any permanent brick, stone, concrete or iron building, and no frame, veneered, or iron clad building erected beyond the 'fire limits' of the city of Louisville prior to the enactment of this ordinance and situated within sixty feet of any permanent brick, stone, concrete or iron building shall be enlarged, remodeled, moved or repaired when damaged by fire or decay to the extent of fifty per cent, exclusive of the foundation, of its value, without the written permission of the inspector of buildings." Section 70 provides: "That wooden structures not more than two stories high, the highest point of the roof not exceeding twenty-eight feet above the grade of the public alley, and not more than twenty-five feet square on the ground floor, may be erected on the rear of a lot at a point where such lot abuts the public alley and used only for servants' quarters, privy, stable, coal house, laundry, etc., without the 'fire...

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17 cases
  • Louisville & Jefferson County Metropolitan Sewer Dist. v. Joseph E. Seagram & Sons, Inc.
    • United States
    • Kentucky Court of Appeals
    • February 6, 1948
    ... ... action, for that does not affect its legality or validity ... O'Bryan v. Highland Apartment Company, 128 Ky ... 282, 108 S.W. 257, 33 Ky.Law.Rep. 349, 15 L.R.A.,N.S., 419, ... 11 ... ...
  • Polk v. Axton
    • United States
    • Supreme Court of Kentucky
    • February 6, 1948
    ...Their damage might well be called special, even though material financial loss was not involved." In O'Bryan v. Highland Apartment Co., 128 Ky. 282, 108 S.W. 257, 15 L.R.A., N.S., 419, this court held that a property owner may sue to enjoin the erection of a building in violation of the bui......
  • Mccurley v. City of El Reno
    • United States
    • Oklahoma Supreme Court
    • September 10, 1929
    ...al. (Wash.) 212 P. 1048. A building permit issued in violation of law or under mistake of fact confers no right. O'Bryan v. Highland Apartment Co., 128 Ky. 282, 108 S.W. 257; Eichenlaub v. St. Joseph, 113 Mo. 395, 21 S.W. 8; Meltzer v. City of Chicago, 152 Ill. App. 334; Averch v. City and ......
  • McCurley v. City of El Reno
    • United States
    • Oklahoma Supreme Court
    • September 10, 1929
    ... ... law or under mistake of fact confers no right ... O'Bryan v. Highland Apartment Co., 128 Ky. 282, ... 108 S.W. 257, 15 L. R. A. (N. S.) 419; Eichenlaub v. St ... ...
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