Canepa v. City of Birmingham

• Decision Date: 13 April 1891
• Citation: 92 Ala. 358,9 So. 180
• Parties: CANEPA v. MAYOR, ETC., OF BIRMINGHAM.
• Court: Alabama Supreme Court

9 So. 180

92 Ala. 358

CANEPA v. MAYOR, ETC., OF BIRMINGHAM.

Supreme Court of Alabama

April 13, 1891

Appeal from city court of Birmingham, H. A. SHARPE, Judge.

Action by F. Canepa against the mayor and aldermen of Birmingham to enjoin the enforcement of a city ordinance establishing fire limits. Plaintiff appeals.

J L. Meade, for appellant.

Cabaniss & Weakley, for appellees.

STONE C.J.

The amended charter of the city of Birmingham was approved February 17, 1883. Sess. Acts. 1882-83, p. 301. Section 20 of that act enumerates the special powers conferred on the mayor and aldermen. In its fourteenth subdivision is this language "To establish, regulate or change fire limits within said city, and to pass all laws necessary for the protection of said city against fire, and for this purpose may remove any wooden building or structure paying the owner therefor a reasonable price." Id. 312. Under this statutory authority the mayor and aldermen established fire limits within said city, and by ordinance declared that wooden buildings should not be erected within the fire limits so established. The ordinances of the city are not in evidence, and we are therefore left to the admissions in the pleadings and to the agreed statement of facts for all the information we have on this, the most important question raised by this record. The bill filed by Canepa, considered in all its averments, concedes that the building he proposed to erect, and was in the act of erecting, was a wooden structure, and was within the fire limits established by and for the city of Birmingham. This implied concession pervades the whole framework of the bill. In fact, seeking relief in chancery, instead of waiting until the threatened trespass should be committed, and then suing for the damage, was and is a pregnant admission that he had not a clear legal right to erect the wooden structure. Else why ask and obtain from the chief of the fire department a permit to erect the building on a lot in his rightful possession? And why renew the application to the building commission, and obtain from that board permission to proceed with the work? The agreed statement of facts leaves no room for doubt on this question. We copy from it as follows: "The building which complainant describes in the bill of complaint is a two-story frame building with a shingle roof, and is of that kind of buildings prohibitd by the city ordinances from being built in the fire limits. The place where it was being erected and where it is situated was at the time it was commenced, and has been all the time since it was started, and is now, that portion of the city of Birmingham where by the charter and ordinances of said city frame buildings are prohibited from being built, and, when commenced and stopped by the officer of said city, the building and erection of same was in violation of charter and ordinances of said city. *** That said building is in a densely populated part of the city, which is rapidly improving. That the property owners and residents near this building objected at the time the building was commenced to its erection, are urging the defendant [mayor and aldermen of Birmingham] to remove it, and prevent its completion and permanent location there." The present bill is prosecuted by Canepa, the appellant. It avers that he had and has a leasehold interest in the designated lot of ground in Birmingham, on which he proposed to build a two-story building of wooden material; that he applied to the chief of...