Kaufman v. Stein
| Decision Date | 08 May 1894 |
| Docket Number | 16,641 |
| Citation | 37 N.E. 333,138 Ind. 49 |
| Parties | Kaufman v. Stein |
| Court | Indiana Supreme Court |
From the Vigo Circuit court.
Judgment is reversed, and the cause remanded, with instructions to overrule said demurrer.
T. W Harper and A. B. Felsenthal, for appellant.
J. Jump, J. E. Lamb and J. C. Davis, for appellee.
This was an action for an injunction commenced by the appellant against the appellee. The appellee entered an appearance to the action, and filed a demurrer to the complaint, for the reason that the complaint "does not state facts sufficient to constitute a cause of action against the defendant." The material allegations contained in the complaint are as follows: 1. That plaintiff (appellant) is the owner of lot 31, in Rose's addition to the city of Terre Haute. 2. That there are, upon said lot, a dwelling house and other buildings. 3. That defendant owns an adjoining lot to plaintiff's said premises. 4. That upon defendant's lot there is a large frame building. 5. That both plaintiff and defendant's lots are within the fire limits of the city of Terre Haute. 6. That the common council of the city of Terre Haute had lawfully adopted an ordinance establishing "fire limits;" a copy of which is filed with the complaint and marked "Exhibit A," and which ordinance was in full force at the time of the commencement of this suit. 7. The ordinance provides that no wooden buildings shall be erected within said limits; that if such building has been heretofore erected within said limits, and it shall be removed, it shall not be relocated within the fire limits. 8. That defendant is about to remove the said frame building now on his lot, and relocate the same within said limits, twenty feet nearer plaintiff's house, and within four feet of plaintiff's property, and ten feet from plaintiff's frame dwelling house, thereby increasing the danger from fire, and making the danger imminent, increasing cost of insurance, etc. 9. That the defendant has the tools, men and machinery ready to remove the same, and will do so unless restrained. 10. That defendant will not encase his said frame building with stone, iron or brick, so as to render it fire proof. The court sustained the demurrer, to which appellant excepted and stood on his complaint, whereupon the court rendered judgment for appellee, from which ruling and action of the court appellant duly appealed. In the case here presented the complaint avers, and the demurrer admits, that the removal and relocation of the appellee's frame building, as threatened, will put the appellant's property in imminent danger from fire. From the briefs of counsel it appears that one point made by counsel for the appellee in argument on the demurrer before the court below was "that the plaintiff was not entitled to maintain this action, but that the city could alone enforce the penalty provided by the ordinance," "or in other words, that an individual could not have an injunction in such a case, even if the ordinance in question here was, in all its provisions, valid, as being within the power of the common council to adopt, because the only remedy in such case was by a prosecution in the name of the city for a violation of the ordinance." Counsel say they do not rely upon this proposition. They concede that "where an individual shows that he suffers or will sustain special damages or injury, above and beyond what the public generally will suffer, by reason of anything which may constitute an injury or damage to the public generally, he may maintain such an action as is proper in the given case to recover damages for, or to prevent the doing of, such a thing." An individual has, and always had, the right to enjoin the erection or continuance of a nuisance where he will suffer a special injury or annoyance, different in kind and degree to that sustained by the public generally. Keiser v. Lovett, 85 Ind. 240; Reichert v. Geers, 98 Ind. 73; Owen v. Phillips, 73 Ind. 284.
In Baumgartner v. Hasty, 100 Ind. 575, at p. 579, it is said: "It is one of the oldest of the common law rules, that an individual citizen may, without notice, abate a nuisance; and, if necessary to effectually abate it, destroy the thing which creates it." A wooden building is not a nuisance per se. It is the circumstances that make it a nuisance. A powder mill is not a nuisance per se, nor is a slaughter house, or glue factory, but if located in populous neighborhoods they are nuisances. And "even when they are originally built in a place remote from the habitations of men, or from public places, if they become actual nuisances by reason of roads being afterwards laid out in their vicinity, or by dwellings subsequently erected within the sphere of their effects, the fact of their existence prior to the laying out of the roads, or the erection of the dwellings, is no defense." Wood Law of Nuisances, 572; Reichert v. Geers, supra, at p. 75; Baumgartner v. Hasty, supra, 575. In the case last cited, Elliott, J., says: etc. Citing Wood's Law of Nuisance, section 109.
We think the complaint under consideration brings this case within the rule thus laid down, as it is alleged that the building is a wooden structure; that it will be removed to a place within the fire limits in violation of a city ordinance forbidding it, and that it will be located within ten feet from the plaintiff's frame house, making the danger imminent.
Upon the proposition "that the common council of the city of Terre Haute had no power to pass the ordinance in question," it is insisted that "inasmuch as the charter had granted certain specific powers to the city * * * none other could be exercised."
The charter provisions are found in R. S. 1881, section 3106; Burns' R. S., 1894, section 3541, subdivision 32, which provides that the common council shall have power "to prevent the erection of wooden buildings in such part of the city as the common council may determine."
Also, in sections 3198 and 3199, R. S. 1881, being sections 3661 and 3662, Burns' Rev. 1894. It is clear that the specific power granted by subdivision 32, supra, is to prevent the "erection" of wooden buildings. Nothing is said about the "removal," and it is insisted, therefore, that so much of the ordinance as attempts to prevent the removal of wooden buildings within or without the fire limits is ultra vires and void, and in contravention of a common right of an owner to do as he pleases with his own property.
The provisions of the ordinance are, in brief, as follows:
Section 1. Defines the fire limits.
Section 2. Provides that no frame building shall be erected within the fire limits.
Section 3. Provides a penalty for removing, or assisting to remove, any frame building from a point within or without to a point within the said fire limits.
Section 4. Provides that any building so erected or removed shall be deemed a nuisance.
Section 5. Provides against the location of lumber yards within said limits.
Appellant admits that the authority to pass an ordinance against the removal of a wooden building is not specifically granted, but insists that it comes within the intention of the Legislature. That the object of granting the power to the city was to enable the common council to take precautions against the destruction of the city by fire.
In the case of Clark v. City of South Bend, 85 Ind. 276, the same point was presented that is now urged, but the court said: "This is a more narrow view of the subject than the books warrant counsel in assuming."
If the ordinance in question concerning removals of buildings is so in derogation of common right as to be void, and if the common council is restricted in its legislative acts to such ordinances only as are literally in compliance with the statutes, it could not prohibit the removal of frame buildings, but only the erection thereof, within the limits, and any person so desiring could construct his house outside of the fire limits and then remove it to a place within, and by a series of removals there might be no end of frame buildings brought within such limits. Such construction would permit parties to accomplish indirectly what they could not do directly, and so evade the ordinance as to render it nugatory. If the power is to be strictly construed, what is there to prevent the erection of a lumber yard upon each vacant lot of the city? The express power is "to prevent the erection of wooden buildings." A lumber pile is not a building, and there is no express power given the city to prevent a lumber yard within the fire limits, yet who would question the inherent right of the council, in the exercise of its police power, to provide against and inhibit the keeping of such combustible material so as to endanger...
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