City of Shenandoah v. Replogle
| Decision Date | 24 June 1924 |
| Docket Number | 35574 |
| Citation | 199 N.W. 418,198 Iowa 423 |
| Parties | CITY OF SHENANDOAH, Appellee, v. GEORGE M. REPLOGLE et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 20, 1924.
Appeal from Shenandoah Superior Court.--FREDERICK FISCHER, Judge.
ACTION in equity by the city, to enjoin defendants from rebuilding a frame building within the fire limits in the city, which building had been partially destroyed by fire. The trial court found for plaintiff, and by the decree provided that the defendants be perpetually enjoined from rebuilding and constructing the building within the fire limits with inflammable materials, contrary to the ordinance of the city and ordered defendants to forthwith remove the building constructed in violation of the ordinance; and in default thereof, the sheriff was commanded to remove the same at the cost of the defendants. The defendants appeal.
Affirmed.
Ferguson Barnes & Ferguson, for appellants.
L. H. Mattox and Thomas W. Keenan, for appellee.
The building in question was a frame all-wood structure, 60x16 feet, and 12 feet high, belonging to the defendants, or some of them. It had been used for storage purposes. The fire occurred December 30, or 31, 1921. Ten or twelve days thereafter, the state fire marshal served upon the owners a notice, under Section 2468-j, Code Supplement, 1913, requiring them to remove the warehouse from the premises forthwith, and to comply with the order and law of the state and the ordinances of the city of Shenandoah. The ordinance was passed a few days thereafter. Defendants began to rebuild, or, as appellants contend, to repair the building, without securing a permit, as required by the ordinance. The fire marshal was not proceeding to remove the building or to carry out the order, nor is the action brought by defendants to enjoin him from so doing. The action is by the city, to enjoin the defendants from violating the ordinance, and was brought after the notice by the fire marshal.
The fire marshal statute provides, in substance, that he, or others named, shall, whenever they shall find a building which, by want of proper repair, age, dilapidated condition, or for any cause, is especially liable to fire, and is so situated as to endanger other buildings or property, etc., order the same to be removed or remedied forthwith; provided that, if the owner or occupant shall deem himself aggrieved by such order, he may, within 48 hours, appeal to the state fire marshal, and the cause of complaint shall be investigated, and unless rejected, the order shall remain in force. The statute further provides for a fine for failure to comply with the order, from which a right of appeal shall be granted; and that nothing therein shall be construed to affect or limit local ordinances or regulations; but that the jurisdiction of the state fire marshal shall be concurrent with that of the municipal authorities.
Since the fire marshal was not proceeding to enforce his order, we think it unnecessary to discuss appellants' objections to this statute. We may remark, in passing, that the position of appellee is that, after the service of notice, the defendants had two rightful courses open,--to comply with the order, or to appeal to the state fire marshal,--neither of which was done; and that, in any event, defendants were doing a wrongful act, and were violating the ordinance, and may be enjoined.
1. The ordinance provides in part that:
"The erection of all buildings or structures of every kind, and additions thereto or substantial alterations thereof, involving partial rebuilding, are prohibited within such limits, unless the outer walls of the same are constructed only of brick, stone, tile, concrete, cement or mortar, and the roof constructed of fire-proof material."
It also provides that any building erected or partially erected or constructed in violation of the ordinance is declared a nuisance, and may be abated under the direction of the city marshal, or that an action by injunction may be begun in the name of the city, to prevent the contemplated illegal act or acts; provided that, before any action is had in the way of abatement, a notice of not less than twenty-four hours shall be given the owner, agent, etc., of the proposed action, requiring him to desist from further violation of the ordinance.
Appellee contends that defendants were proceeding to make additions or substantial alterations in the building, involving partial rebuilding, contrary to the ordinance; while appellants say that they were proceeding to repair the building, and that this does not come within the ordinance; that the building is standing pretty much as it was before the fire. This is a question of fact. The defendants produced no witnesses. Referring as briefly as may be to the evidence, it appears that, as a result of the fire, about three fourths of the roof was entirely gone. The part of the roof not destroyed was damaged some all over; the tops of the partitions were burned "quite a bit," as the witnesses put it,--the top three or four feet were damaged; the inside of the walls was burned quite a bit along the roof; holes were burned through the lining and the siding, showing on the outside and extending downward nearly to the ground in one place; holes were cut in the siding by the firemen; it would take 210 feet of new siding to repair the outer walls; the entire building, foundation and all, would cost about $ 800 to build; the inside wall, or sheeting, at one end is burned entirely up at the top; south gable was burned out as far down as the plate; the walls of the two south rooms were burned "quite bad;" the walls of the north room were burned some, but were in a good substantial condition; reroofing would cost $ 238. This does not include repairing the inside walls or the sheeting. The surroundings are described, and a fireman testifies that the building is dangerous to surrounding buildings and property, because adjacent to wooden buildings, high-tension wires, and so on. Photographs of the condition of the building appear in the record.
Without further discussion, it seems quite clear that the building was in a dilapidated condition, or more properly speaking, perhaps, practically a wreck, incapable of use as a building without being partially rebuilt.
2. It is further contended by appellants that, if the ordinance be construed to cover the rebuilding operations, it is unconstitutional under the state and Federal Constitutions in that it deprives defendants of their property without due process of law, and takes the property for public use without compensation. They concede that, under our statutes, the city can fix certain fire limits and prescribe the kind of buildings which may be erected therein; and...
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