Fruth v. Bd. Of Affairs Of City Of Charleston

• Decision Date: 05 January 1915
• Docket Number: (No. 2796.)
• Court: West Virginia Supreme Court
• Parties: FRUTH et al. v. BOARD OF AFFAIRS OF CITY OF CHARLESTON et al.

84 S.E. 105

75 W.Va. 456

FRUTH et al.

v.BOARD OF AFFAIRS OF CITY OF CHARLESTON et al.

(No. 2796.)

Supreme Court of Appeals of West Virginia.

Jan. 5, 1915.

(Syllabus by the Court.)

Mandamus by Val Fruth and others against Board of Affairs of the City of Charleston and others. Peremptory writ awarded.

Linn & Byrne, of Charleston, for petitioners.

A. S. Alexander, E. B. Dyer, and Morgan Owen, all of Charleston, for respondents.

MILLER, P. Mandamus to require the Board of Affairs of the City of Charleston to grant to relators, Trustees of St. Paul's Evangelical Lutheran Church, a permit to construct a church edifice upon their lot at the intersection of Lee Street with Beauregard Street in said city, and having a frontage of 110 feet on each of said streets.

The alternative writ avers that on December 4, 1914, relators, in conformity with the requirements of the ordinances of said city, made formal application to the Building Inspector of said city for such permit, and was informed by him, that he would recommend to said Board of Affairs that said permit be rejected; and that on December 7, 1914, they appeared at a regular meeting of said Board of Affairs, and requested such permit, but that upon the report of said Building Inspector that the said church edifice as proposed to be erected upon said lot would extend over the building line on Lee Street, as established by ordinance adopted on March 19, 1909, and that it would be impossible to construct said edifice on said lot as proposed without encroaching on said building line, said permit, by order entered of record, was rejected, and relators denied the right to so erect their said church building, upon the sole and only ground that the same would encroach upon the building line purporting to have been so established by said city.

The alternative writ further avers that the lot of relators is wholly outside of any prescribed fire limits, and that the proposed structure does not and will not in any way conflict with any ordinance or regulation of said city concerning the safety, the health, the morals, or the good order of or among the citizens or inhabitants of said city, and that the refusal of defendants to award saidbuilding permit rests solely on the question whether the council of said city has the right to prescribe and the Board of Affairs the right to enforce the aforesaid ordinance establishing a building line twenty-five feet from the property line of said Lee Street, and to deny relators the right to occupy their lot with said structure within the said limits.

To so deny relators' right to erect said structure, as proposed, the writ further avers, would be to deprive them of their property without due process of law, and without compensation therefor, paid or secured to be paid, and contrary to sections 9 and 10, of Article 3, of the Constitution.

Defendants appeared and demurred to and moved to quash the alternative writ, and made no other or further return thereto. So the case stands upon the sufficiency of the averments of the alternative writ.

Legislative authority to pass the ordinance in question is referred to section 8, of chapter 3, Acts 1907, the charter act of said city defining its rights and powers, and purporting to give it authority, among other things, "to provide for the regular building of houses or other structures, and to determine the distance that they shall be built from any street or alley."

So there can be no doubt that the Legislature, at least, made attempt to confer on said city power to establish building lines along its streets and alleys. Neither the charter provision nor the ordinance in question passed in pursuance thereof, attempting to establish said building line, make any provision for condemning the property abutting on the street, nor for making compensation to the owner for the burden imposed upon his property for the public benefit.

Whether the charter or ordinance should so provide we think we need not determine, nor need we hold, according to our views of this case, that without such provision for condemnation and compensation, the charter or ordinance is void on constitutional grounds. Possibly the charter and ordinance might be construed as implying the power to condemn and to compensate for property taken or damaged by the lawful establishment of such building lines. In some states, in Missouri, for example, it is held that a law of this kind, making no provision for compensation to the owner, is void as being in contravention of the Constitution against the taking or damaging of private property for public purposes without just compensation. St. Louis v. Hill, 116 Mo. 527, 22 S. W. 861, 21 L. R. A. 226.

Two propositions of law are mainly relied on by defendants as justifying denial of the peremptory writ: First, that the establishment of a building line, for mere aesthetic purposes, is not a taking or damaging of private property for public purposes, within the meaning of the Constitution. Second that whatever be the nature of the act, it is clearly within the police power of the State, delegated to the municipality, and for which no compensation, as for property taken or damaged, can be demanded, and that when so taken or damaged, the injury is damnum absque injuria.

On the first proposition, what is included within the word "property, " as employed in the Constitution? Does it mean the mere abstract thing, the thing possessed, in this case the land embraced in the boundary of the lot? We think not. Literally taken the word is sometimes said to be no-men generalissimum, but it is not always so used. Generally, and particularly in an organic law, it comprehends not only the thing possessed, but the right also to use and enjoy it, and every part of it, and in the case of real estate to the full limits of the boundary thereof. 3 Bouvier's Law Dict. (Rawle's 3d Revision) 2750; Wells Fargo & Co. v. Mayor, etc. (D. C.) 207 Fed. 871 (syl. 4). "Things real are such as are permanent, fixed, and immovable, as lands, and rights issuing out of, or connected with lands." 2 Minor Inst. 4, citing 2 Bl. Com. 15. In short, land, property, includes everything above and below it, ab solo usque ad coelum. 2 Minor Inst. 4, and 2 Bl. Com. 17. As defined in St. Louis v. Hill, supra, property "is the exclusive right of any person to freely use, enjoy and dispose of any determinate object whether real or personal." Citing 1 Bl. Com. 138; 2 Austin's Jur. 817, 818; 19 Am. & Eng. Ency. Law, 248; Lewis on Em. Dom. sections 57, 58, and 59. And in the same case it is said:

"Property, then, in a determinate object, is composed of certain constituent elements, to-wit: The unrestricted right to use, enjoyment and disposal, of that object."

And by our statute, section 17, chapter 13, serial section 346, fifteenth paragraph, Code 1913:

"The word 'land' or 'lands' and the words 'real estate' or 'real property' include lands, tenements and hereditaments, and all rights thereto and interests therein except chattel interests."

And by the seventeenth paragraph thereof: "The word 'property' or 'estate' embraces both real and personal estate."

See, also, the general discussion of Judge Brannon, on the definitions of "property" and the right given by the Constitution to "tax all property, real and personal" in Coal & Coke Co. v. Tax Commissioner, 59 W. Va. 605, 608, et seq., 53 S. E. 928.

Upon principle, therefore, as well as upon authority, we hold that anything done by a state or its delegated agent, as a municipality, which substantially interferes with the beneficial use and ownership of land, depriving the owner of his lawful dominion over it or any part of it, not within the general police power of the state, as commonly understood, is a taking or damaging of the property without compensation withinthe meaning of our Constitution, and inhibited thereby.

Now on the second proposition: Can the charter authority to establish a property line, as attempted by the ordinance in question, be sustained under the police power of the state? The demurrer to the alternative writ concedes the fact alleged that relators' lot is not within any of the fire limits established by the municipality; and it is alleged and not denied, but in so far as well pleaded, admitted by the demurrer, that the proposed structure does not and will not conflict with any ordinance or regulation of the city covering the safety, the health, the morals, or the good order among the citizens and inhabitants thereof.

It is conceded by relators that an ordinance clearly regulative, and within the police powers of the state, and within delegated powers of the municipality, would be valid, but it is Insisted that the ordinance in question does not fall within that category. Stated in its most comprehensive terms by the highest court of our country this power extends not only to regulations which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity. Eubank v. City of Richmond, 226 U. S. 13T, 142, 33 Sup. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192, citing C, B. & Q. Ry. Co. v. Drainage Com'rs, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175.' And in the same connection it is said, on the authority of another case, that:

"It is the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government." District of Columbia v. Brooke, 214 U. S. 138, 149, 29 Sup. Ct. 560, 563 (53 L. Ed. 941).

But the court held in the principal case, reversing the supreme court of Virginia, that an ordinance of the city of Richmond, based on a provision of its charter act, very similar to that of the City of Charleston, and tested by the extreme limits of the power, namely, the public convenience and general prosperity, that an ordinance which required the street committee on request in writing of the owners of two thirds of the property...