First Nat. Bank of Mt. Vernon v. Sarlls

• Decision Date: 22 September 1891
• Citation: 129 Ind. 201,28 N.E. 434
• Parties: First Nat. Bank of Mt. Vernon et al. v. Sarlls et al.
• Court: Indiana Supreme Court

129 Ind. 201

28 N.E. 434

First Nat. Bank of Mt. Vernon et al.

v.Sarlls et al.

Supreme Court of Indiana.

Sept. 22, 1891.

Appeal from circuit court, Posey county; R. D. Richardson, Judge.

Action by the First National Bank of Mt. Vernon and others against Richard Sarlls and others to enjoin the repairing of a frame building. Judgment for defendants on demurrer. Plaintiffs appeal. Affirmed.

Elijah M. Spencer and Wm. P. Edson, for appellants. Gustavus Menzies and Walter S. Jackson, for appellees.

McBRIDE, J.

This case involves the validity of the second section of an ordinance of the city of Mt. Vernon entitled “An ordinance concerning the prevention of fires.” The first section, the validity of which is not called in question, establishes fire limits, and prescribes the material which may be used in the erection of buildings within these limits. The second section is as follows: “Sec. 2. It shall be unlawful for any person to alter, repair, or rebuild any frame or wooden building situated within the limit defined and prescribed by this ordinance, whenever the amount required to alter, repair, or rebuild shall equal or exceed the sum of three hundred dollars. Any person violating the provisions of this section may be fined in any sum not less than two dollars, nor more than one hundred dollars, with costs, and each day that workmen are employed on such building shall constitute a distinct offense.” The complaint charges, in substance, that the appellees were the owners of certain real estate in Mt. Vernon, and within the fire limits prescribed by the ordinance in question, upon which they were threatening to and had commenced to rebuild and repair certain frame buildings, at a cost exceeding $300, which had previously been partially destroyed by fire. The appellants (plaintiffs below) are shown to be each the owners of certain other tracts of land, either adjacent to or in the immediate vicinity of the appellees' building, on which valuable buildings have been erected; and they charge that, by reason of the threatened repairing and rebuilding by the appellees, the danger of the destruction by fire of their respective buildings is “greatly increased, and made more imminent, thereby diminishing the value of said plaintiffs' real estate, and increasing the rate of fire insurance thereon, to the irreparable injury and damage of the said buildings on each and all of the said pieces of real estate so as aforesaid owned by the plaintiffs, and is an obstruction to the free use by the plaintiffs of their said property, and interferes with the comfortable enjoyment thereof,” etc. Prayer for an injunction. The circuit court sustained a demurrer to the complaint, and rendered judgment for costs in favor of the appellees.

Three questions are presented and discussed: (1) Will injunction lie in such a case? (2) If so, is there a misjoinder of parties plaintiff? (3) Is the section of the ordinance in question valid?

As a rule, a court of equity will not, at the suit of a city, restrain by injunction the threatened violation of an ordinance of such city regulating the erection of buildings for the purpose of greater security against damage by fire. 15 Amer. & Eng. Enc. Law, 1172; St. John v. McFarlan, 33 Mich. 72;Waupun v. Moore, 34 Wis. 450; Mayor v. Thorne, 7 Paige, 261;Manchester v. Smyth, (N. H.) 10 Atl. Rep. 700. Nor will the courts thus interfere at the suit of an individual, when such interference is sought solely for the enforcement of the ordinance, and not because of special damage threatening the party asking such interference. Some of the authorities above cited affirm that, to warrant the application of the restraining power to prevent the erection of buildings in violation of a city ordinance, the act sought to be restrained must be a nuisance in fact, and not one created solely by statutory enactment or municipal ordinance. We can see no good reason for the distinction. When it is shown that the erection of a building, if permitted, will be in express violation of a valid municipal ordinance, although it would not be a nuisance per se, an individual who shows such fact, and shows, in addition, that its erection will work special and irreparable injury to him and to his property, is entitled to relief by injunction. It is only when the injury is general and public in its effects, and no private right is violated in contradistinction to the rights of the rest of the public, that individuals are precluded from bringing private suits for the violation of their individual rights. Blanc v. Murray, 36 La. Ann. 162; Wood, Nuis. 645 et seq.; McCloskey v. Kreling, 76 Cal. 511, 18 Pac. Rep. 433; Horstman v. Young, 13 Phila. 19; Rand v. Wilber, 19 Ill. App. 395; Mayor, etc., v. Hoffman, 29 La. Ann. 651. In the case at bar it is charged by the averments of the complaint that the threatened act will be in violation of a municipal ordinance, and that it will work special and irreparable injury to the property of the petitioners. They have the right to maintain the action.

There is no misjoinder of parties plaintiff. While the appellants are shown to be the owners of separate and distinct tenements, and thus are not united in interest with each other, there is one object of common interest among all of them. They all claim one general right to be relieved from that which they insist is a nuisance, and which alike affects all of them. Their common danger and common interest in the relief sought authorizes them to join in the action. Tate v. Railroad Co., 10 Ind. 174, and authorities there cited; Town of Sullivan v. Phillips, 110 Ind. 320, 11 N. E. Rep. 300.

The question as to the validity of the ordinance presents much greater difficulty. There can be no doubt that in this state cities possess ample power to enact and enforce reasonable ordinances to secure protection against fire. In the absence of express statutory authority, the enactment and enforcement of reasonable regulations of this character is recognized as a legitimate exercise of the police power, necessary to the safety of the city. Baumgartner v. Hasty, 100 Ind. 575;Hasty v. City of Huntington, 105 Ind. 542, 5 N. E. Rep. 559; Clark v. City of South Bend, 85 Ind. 276, and authorities cited in each; also Mayor, etc., v. Hoffman, 29 La. Ann. 651;King v. Davenport, 98 Ill. 305; Wadleigh v. Gilman, 12 Me. 403; Salem v. Maynes, 123 Mass. 372; Troy v. Winters, 4 Thomp. & C. 256; McKibbin v. Ft. Smith, 35 Ark. 352; Klingler v. Bickel, 117 Pa. St. 326, 11 Atl. Rep. 555. In addition to the power thus possessed, clause 32 of section 3106, Rev. St. 1881, enumerating the powers conferred upon cities, confers express authority to establish fire limits, and prevent the erection of wooden buildings in such parts of the city as the common council may determine. The statutory authority is still further extended by clause 5 of the same section, and by section 3155, known as the “general welfare” clause. Counsel for appellees insist, however, that the enactment of the statutes in question served as a limitation upon the powers of the city; that the powers therein enumerated, and more, belonged to the city at common law; and that, by the statutory enumeration of certain specific powers, all others not thus enumerated are excluded. Expressio unius, est exclusio alterius, has no application. The statute, in so far as it enumerates common-law powers previously possessed by the municipality, is merely declaratory of the common law. But, while it is no doubt competent for the legislature, in creating such corporations, to deprive them of all common-law police power, and enact that they shall possess and exercise such only as are conferred by statute, such intention of the legislature will not be inferred simply because some of the common-law powers are enumerated, while no mention is made of others. In the exercise of these powers, they may not only prescribe where wooden buildings may and where they may not be erected, but they may undoubtedly exercise a reasonable control over the making of repairs on all buildings, whether of wood or not, and may prevent the use of inflammable or otherwise dangerous material in making such repairs. It can hardly be doubted that if the owner of a building proposed to make repairs or additions to it of such material, or in such manner, as to seriously menace the public safety or to greatly endanger adjacent property, the city authorities have ample power to interfere, and prevent the making of such repairs or additions. City Council v. Louisville, etc., R. Co., 84 Ala. 127, 4 South. Rep. 626;King v. Davenport, 98 Ill. 305. They also have full power to abate nuisances, and may, if necessary, remove or compel the removal of buildings which have for any cause become nuisances, by getting in such condition that they greatly endanger the public health or safety, or the safety of adjacent property, provided the danger inheres in the building, and not simply in the use to which the building is put. Here, also, although the statute gives ample authority, they have, without statutory authority, ample power at common law to cause the abatement of the nuisance; and, if it cannot be otherwise abated, they may destroy the thing which constitutes or creates it. Baumgartner v. Hasty, supra, and authorities cited. They may also remove, or compel the removal of, woodenbuildings erected in violation of a valid ordinance; not, necessarily, because the building thus erected is a nuisance, but because its erection was in violation and defiance of the law, and its owner cannot complain when the law is vindicated by its removal.

If it were possible to so prepare wood that it would be absolutely non-inflammable, and that a building erected of it would be fire-proof and safer than one erected in the ordinary way, of stone or brick, a building thus erected of wood, in violation of a valid ordinance enacted under clause 32 of section 3106, supra, forbidding such...