Cochran v. Preston
| Decision Date | 24 June 1908 |
| Citation | 70 A. 113,108 Md. 220 |
| Parties | COCHRAN v. PRESTON et al. |
| Court | Maryland Court of Appeals |
Appeal from Court of Common Pleas of Baltimore City; Henry Stockbridge, Judge.
Application for mandamus by William F. Cochran, Jr., against Edward D Preston, inspector of buildings of Baltimore City, and others, to compel the issuance of a permit to make an alteration in a building. From an order dismissing the application, plaintiff appeals. Affirmed.
W Stuart Symington, Jr., for appellant.
Sylvan Hayes Lauchheimer, for appellees.
The only question involved in this appeal is whether or not Acts 1904, p. 63, c. 42, is a valid exercise of legislative power. By this act it is provided: "That from and after the date of the passage of this act, no building, except churches, shall be erected or altered in the city of Baltimore on the territory bounded by the south side of Madison street, the west side of St. Paul street, the north side of Centre street and the east side of Cathedral street to exceed in height a point seventy feet above the surface of the street at the base line of Washington Monument." The act was approved March 15, 1904. The ordinances of Baltimore require all persons who desire to build, alter, or repair any structure within the limits of the city, or who desire to put an additional story upon any building therein, to obtain a permit from the inspector of buildings, and also from the appeal tax court of that city. The appellant is the owner of a large apartment house, located on the northwest corner of Mt. Vernon Place and Washington Place, within the territory to which the prohibition of the statute applies; and desiring to put an additional story thereon to be used as quarters for employés, he applied to the appellees for a permit to make the desired alteration. In his application for such a permit the applicant stated that the house is, at present, 70 feet high, and that the proposed addition would be but 8 feet in height, and set back on the roof at a uniform distance of 20 feet from Mt. Vernon Place, and a like uniform distance from Washington Place, and that it would not be possible to see any part of the addition from either of these places. That the total cost of the building and ground, in the first place, was about $450,000, and that, as the building now stands, it is impossible to derive from the same a sufficient revenue to yield a fair profit on the investment therein, but that the proposed addition would enable the owner to derive a fair return for the whole outlay. The appellees refused the permit, on the ground that the additional story proposed would raise the building to a height greater than 70 feet above the base line of Washington Monument, contrary to the provisions of the act of Assembly above mentioned. A mandamus was then applied for, and denied by the court for the same reason assigned by the appellees in the first instance.
It is elementary that the word "land," in its legal signification, has an indefinite extent upwards as well as downwards, and, therefore, if it were possible for man to live in a state of nature, unconnected with other individuals, the proprietor of land would own, not only the face of the earth within the boundaries of his proprietorship, but also everything under it and over it. An imaginary person, living in such a state of nature, would be at liberty to use his land as he pleased, to build on it to any height, and to dig into it to any depth, without restraint. But as man was formed for society, and is incapable of living alone, organized society is essential to his well-being and happiness, and every person who enters society must give up a part of his so-called natural rights and liberties for the benefit of the community. 1 Black. Comm. p. 125. Parker and Worthington Public Health and Safety, § 14. The power to prescribe regulations, demanded by the general welfare, for the common protection of all, is known as the police power of the state, and is inherent in every sovereignty. Prentice on Police Power, p. 6; Comm. v. Alger, 7 Cush. 53; Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77. Among the police powers of the state the right to regulate the height of buildings in a city is one that cannot be questioned. Lewis on Eminent Domain, § 156; Tiedeman on State and Federal Control of Persons and Property, p. 754; Welsh v. Swasey, 193 Mass. 364, 79 N.E. 745. Yet such regulations must be reasonable in their character, and adapted to accomplish the purpose for which they are designed. People v. D'Oench, 111 N.Y. 359, 18 N.E. 862; Watertown v. Mayo, 109 Mass. 319, 12 Am. Rep. 694; Atty. Gen. v. Williams, 174 Mass. 477, 55 N.E. 77.
As the purpose of the statute under consideration does not appear on its face, such purpose is open to inquiry, and the appellant contends that its purpose was and is to preserve the beauty and architectural symmetry of the environment of Washington Monument, and that in the exercise of the police power property rights cannot be impaired for purely æsthetical purposes. To sustain the legal proposition, he quotes from Freund, Constitutional Rights and Public Policy (1904) § 181 as follows: "If the purposes were purely æsthetic, the impairment of property rights, even upon the payment of compensation, would not pass unchallenged"--and also from 2 Tiedeman, State and Federal Control of Persons and Property, p. 755, as follows: "Regulations, which are designed only to enforce upon the people the legislative conception of artistic beauty and symmetry, will not be sustained, however much such regulations may be needed for the artistic education of the people." Such is undoubtedly the weight of authority, though it may be that, in the development of a higher civilization, the culture and refinement of the people has reached the point where the educational value of the fine arts, as expressed and embodied in architectural symmetry and harmony, is so well recognized as to give sanction, under some...
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