Harvey v. The City Of Elkins

• Decision Date: 16 March 1909
• Citation: 65 W.Va. 305
• Court: West Virginia Supreme Court
• Parties: Harvey v. The City of Elkins et al

65 W.Va. 305

Harvey

v.The City of Elkins et al

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1907.

Decided March 16, 1909.

1. Appeal and Error Decisions Revieioable Affecting Real Property Amount in Controversy.

This Court will entertain an appeal from a decree, rendered by a circuit court in an injunction proceeding, refusing to dissolve and prepetuating a temporary injunction affecting the use and enjoyment of real property, notwithstanding the value of the realty involved may be less than one hundred dollars, (p. 307.)

2. Municipal Corporations Permission to Alter Building Unreasonable Refusal.

Where a city council, acting under authority of the city charter and the general law, which empowers it "to provide for the rugular building of houses or other structures and to provide for the kind of material to be used in the construction thereof," and "to make regulations guarding against danger or damage by fire," passes an ordinance requiring permission to be obtained from such city council before a property owner can "alter, change or repair" a building already erected, and under such ordinance refuses permission to the owner of a house to make such minor alterations, changes and repairs, as the replacing of windows, and doors, the removing and relocation of partition walls on the inside of the house, the re-papering of the walls and the painting of the outside walls, such refusal is unwarranted and unreasonable, and the ordinance will not be construed as authorizing the city to withhold permission to make such minor, and necessary repairs; and the municipal officers may be enjoined from preventing the making of such alterations, changes and repairs, (pp. 208, 209.)

Appeal from Circuit Court, Randolph County. Bill by M. H. Harvey against the City of Elkins and others. Decree for complainant, and 'defendant City appeals.

Affirmed.

Samuel T. Spears, for appellant, W. B. Maxwell, for appellee.,

Williams, Judge:

Mrs. M. H. Harvey is the owner of a one story wooden building in the City of Elkins. It had been occupied by the Sheriff as an office; and in March, 1907, the front door, one window and a part of the wall were taken out in order to remove a large safe used by the sheriff. Immediately.thereafter Gr. B. Harvey, the husband of plaintiff, proceeded to replace the front of the building so removed, putting in a larger window in. the front. He was notified by the Chief of Police that, if he persisted in making such repairs without permission from the city council, he would be arrested. On the 21st day of March, 1907, and after he was threatened with arrest, he applied to the city council for permission, stating in his application such repairs as he desired to make, which were the repair of the front of the house as above stated; the changing of a partition inside of the building; the repapering of the wall inside; the changing of his electric lights and the painting of the building on the outside. Permission to do this was refused. He again, on April 4, 1907, applied to the council for permission to replace the front of the building in the same manner in which it was just before the part of the front had been torn away, and to replace the door and window which had been removed, and also asked permission to re-locate a partition on the inside; to paper the walls; to re-arrange the electric lights and to paint the building on the outside. Permission to do these things was also denied. Mrs. Harvey thereupon applied to the circuit court of Randolph county, then in session, on the 26th day of April, 1907, for an injunction to restrain and inhibit the City of Elkins, and its officers, from interfering with her having such repairs made, and on this bill, verified and further supported by affidavits, a temporary injunction was granted.

On the same day the City of Elkins appeared and demurred to, and answered the bill, and gave notice that it wonld move to dissolve the injunction. Motion to dissolve was made, and by agreement the case was heard upon the bill and exhibits, answer and general replication thereto, and affidavits filed with the bill; and on the hearing the court perpetuated the injunction. From that decree the City of Elkins has appealed to this Court.

The record presents two questions only: First, whether, or not, this Court has jurisdiction to entertain the appeal; second, whether, or not, the City of Elkins had the right under its charter to deny plaintiff the right to make the repairs above mentioned.

In regard to the first question, it is contended by counsel for appellee that, as the pecuniary value of the property in question is not shown, this Court has not jurisdiction of the appeal. But the question concerns the free use and enjoyment of real estate, and the whole matter is disposed of by the decree perpetuating the injunction. It adjudicates the principle of the cause. A decree refusing to dissolve an injunction, in such a case, is appealable without regard to the pecuniary amount involved. We therefore entertain the appeal. Chapter 135, section 1, clause 7 of Code (section 4038, Code 1906); Robrecht v. Wharton, 29 W. Va. 746.

The case of CarsJcadon v. Board of Education, 61 W. Va. 468, on which appellee relies to show want of jurisdiction, is not similar to this one, and does not govern. In that case the Board had let, by contract, a certain school...