Harris v. Poulton
| Decision Date | 21 April 1925 |
| Docket Number | C. C. 349. |
| Parties | HARRIS v. POULTON ET AL. |
| Court | West Virginia Supreme Court |
Submitted April 14, 1925.
Syllabus by the Court.
The provisions of part 2, par. 2, § 4, par. 33, § 7, and part 3 par. 4, § 11, of the municipal ordinances of the City of Wheeling, among other things prohibiting the building, raising, altering, or removal of certain classes of buildings contrary to the provisions of the Building Code and defining "garage" included therein, and prohibiting the erection of such garages within said city unless built of fireproof construction, and prescribing penalties for the violation of said ordinances, constitute a valid exercise of the police power of the municipality.
Such a police power in a municipality respecting protection against fire is properly referable to specific legislative authority if conferred, or to the general welfare provisions of the municipal charter, and it exists inherently in the municipal authorities as necessarily implied from the general powers granted in respect thereto.
And when the owner of a lot in the municipality, in violation of such an ordinance, erects on his lot a garage of inflammable materials within a section devoted exclusively to residential purposes, to accommodate a large number of automobiles, and lets the stalls therein to owners thereof for storage, with their gasoline fuel tanks and oils and greases therein, with right of ingress and egress at all hours of the day and night, to the disturbance of the rest, peace, and quiet of tenants on the adjoining lots, thereby greatly increasing the fire hazard and rates of insurance on the adjoining properties, and depreciating the actual and rental value thereof, the owner or owners of the adjoining property so specially damaged may maintain an action at law against the owner of such garage for the damages sustained.
Action by Martha J. Harris against Isidore F. Poulton and others. After sustaining a demurrer to declaration, the court certified rulings. Demurrer overruled.
Tom B. Foulk and J. M. Ritz, both of Wheeling, for plaintiff.
Handlan, Garden & Matthews, of Wheeling, for defendants.
Plaintiff being the owner of two houses and the lots on which they are located, situated on the south side of Ohio Street, City of Wheeling, in that section known as Wheeling Island, a section devoted exclusively to residential purposes, brought this suit against defendants, owners of a lot fronting thirty feet on said street and running back to an alley 120 feet, and adjoining one of plaintiff's lots, to recover damages alleged to have been sustained by her, by the building and operation by defendants on their lot of a garage, in violation of the provisions of an ordinance of said city, known as the Building Code.
The court below sustained defendants' demurrer to the declaration, and certified its rulings thereon to us for our judgment thereon. The grounds of the demurrer were:
(1) The declaration does not charge actionable negligence in the erection of the building complained of.
(2) The declaration does not charge that this building, or the use which is being made of it, constitute actionable negligence.
(3) The construction and maintenance of the building in violation of the ordinance pleaded, does not give rise to the liability in favor of the plaintiff against the defendants.
In argument here counsel for defendants affirm four several propositions in support of their demurrer, as follows:
(1) The declaration shows on its face that the ordinance is invalid in so far as it attempts to regulate buildings in excess of its charter powers to regulate the erection and construction of buildings.
(2) The declaration fails to allege facts sufficient to show that the regulation of the erection and construction of the building in question was within the powers of council.
(3) The declaration fails to show a cause of action in that the construction and maintenance of buildings in violation of an ordinance does not give a right of action in favor of the plaintiff against the defendants, where a specific penalty is provided in the ordinance in question.
(4) The declaration is defective even though a personal right of action is given the individual for violation of a municipal ordinance, yet in order to sustain a declaration, facts must be pleaded which show that the plaintiff suffers special damages in a special manner different in kind and not in degree from the damages suffered by the general public.
It is observed that the declaration is not predicated on negligence, assigned in the first and second grounds of demurrer. The building as substantially described in the declaration, consists of two side walls and a back wall of glazed tile, built on the property lines, about ten feet in height, the declaration alleges, with a court or drive way in the center, opening out on Ohio Street, the roof and inside walls of the stalls being built of wooden rafters and sheeting with tar paper covering, supported by wooden posts, with wooden doors inclosing some twenty-eight stalls opening out into the roadway or court, in such a way as to provide for the ingress and egress of automobiles stored therein, said roof sloping slightly from the court or roadway on either side towards the side walls of said building.
The declaration alleges that defendants constructed and maintained said building over the protest of plaintiff, in violation of the provisions of said Building Code, without having previously obtained the required permit or approval of the Superintendent of Building Construction, as required by paragraph 6, § 5, pt. II, of said Building Code.
And by way of assigning special damages incurred by plaintiff by the alleged unlawful construction of said building, it is averred, first, that ever since the completion thereof, about February or March, 1920, defendants have rented to various individuals the stalls thereof, for the purpose of storing automobiles therein, and that there have been, are now, and will continue to be, stored in said garage a large number of automobiles in excess of three, which contain gasoline, greases, and other inflammable materials, rendering the said building highly inflammable, and liable to cause a conflagration; second, that the tenants of defendants, at unseemly hours of night, that is to say, between ten o'clock p. m. and two o'clock a. m., go in and out of their respective stalls in said garage, and make loud and unseemly noises in starting and stopping their machines, so that said tenants occupying plaintiff's houses are disturbed in their sleep and rest thereby; third, that by reason of said structure, and the operation thereof as alleged, the fire hazard to plaintiff's property has been greatly augmented, the rate of insurance greatly increased, and the actual and rental values thereof greatly decreased, and which will continue to decrease over what they otherwise would be but for the construction and operation of defendants' garage, to her damage ten thousand dollars.
Of the provisions of the Building Code pleaded and relied on as having been violated and as entitling plaintiff to the relief sought, part II, par. 2,§ 4, is as follows:
"No building already erected, or hereafter to be built, shall be raised, altered, moved or built upon in any manner that would be in violation of any of the provisions of this Code, or the approval issued thereunder."
Part II, par. 33, § 7, defining a garage, is as follows:
" Garage.--A garage is (a) that portion of a structure in which a motor vehicle containing volatile inflammable oil in its fuel tank is stored, housed or kept; (b) all that portion of such structure that is on, above, or below the space mentioned in (a), which is not separated therefrom by tight, unpierced firewalls and fireproof floors."
That portion of part III, par. 4, § 11, which under class F includes "garages accommodating more than three cars," provides that:
The main proposition relied on by defendants in connection with these provisions of the municipal code are, first, that in so far as they or either of them relate to structures under ten feet in height, they exceed the charter powers of the municipal council; second, that if valid, they give no right of action in favor of a property owner for damages common to all, and not special, for violation of the ordinance.
The section of the charter (chapter 21, Acts 1915, Regular Session, Municipal Charters), referred to, is as follows:
It is argued upon the authority of Parkersburg Gas Co. v Parkersburg, 30 W.Va. 435, 4 S.E. 650, and State v. Godfrey, 54 W.Va. 54, 46 S.E. 185, that the powers of a municipal corporation must be strictly construed, and if there is any reasonable doubt as to existence of the power, the...
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