Moll Company v. Holstner
| Decision Date | 09 January 1934 |
| Citation | 252 Ky. 249 |
| Parties | Moll Company v. Holstner. |
| Court | United States State Supreme Court — District of Kentucky |
1. Municipal Corporations. — Owner unable to have hearing in advance of destruction of his property alleged to be unsafe and to endanger life has right thereto afterward by action for its value; burden being on defendant to prove justification.
2. Municipal Corporations. — Evidence in action for razing dilapidated buildings established that buildings were not so unsafe as to endanger life or property and to require emergency action (Ky. Stats., secs. 2742, 2783).
3. Appeal and Error. — Appellate court could not deny property owner right to have jury decide issues and assess damages for razing dilapidated buildings where there was evidence of recognized probative value.
4. Municipal Corporations. — Evidence in action for razing dilapidated buildings sustained award of $5,500 damages as value of buildings destroyed.
5. Appeal and Error. — In action for razing dilapidated buildings, admitting evidence showing assessed valuation of property for taxation held not prejudicial, where assessed valuation was much less than value claimed for it in plaintiff's evidence.
6. Estoppel. — Owner held not estopped to deny city's right to raze his dilapidated buildings because, having received notice to do so himself, he did nothing, and upon being notified that city would have the buildings wrecked he took no action to prevent it.
Appeal from Jefferson Circuit Court
CRAWFORD, MIDDLETON, MILNER & SEELBACH for appellant.
DAVID R. CASTLEMAN for appellee.
Affirming.
Under contract with the city of Louisville, through its inspector of buildings, the appellant, the Moll Company, razed a row of dilapidated buildings owned by the appellee, Wells Holstner, in Highland Park, a part of the city. In his suit for damages, judgment for $5,500 was rendered against the company, from which it brings an appeal. The city was not a party to the suit.
Justification for the destruction of the buildings is claimed under the orders of the building inspector, whose authority or claimed authority is to be found in the Building Code, a part of the general ordinances of the city adopted under the provisions of sections 2742 and 2783, Statutes, which in this respect were construed in Fowler v. Obier, City Building Inspector, 224 Ky. 742, 7 S.W. (2d) 219. Section 27 of the Building Code makes it the duty of the inspector, whenever he shall find any structure "in such unsafe condition as to endanger life or property but in such condition that by the immediate application of precautionary measures such danger may be averted," to adopt and put into effect such measures as may be necessary or advisable in order to remedy the situation. Notice to and opportunity for the owner to do this are provided, and in case of a failure the inspector may act. Subsection (e) of that section of the Building Code which is particularly involved is as follows:
"If the time requirements of the notice specified in this section have not been complied with, and said structure is in such an unsafe condition as to endanger life or property, it shall be the duty of the Inspector of Buildings to proceed forthwith to tear down or destroy, or cause to be torn down and destroyed, that part of said structure which is in such unsafe condition as to endanger life or property, and in cases where an unsafe structure cannot be repaired or rendered safe by the application of precautionary measures, such structure, or dangerous parts thereof, shall be torn down, or caused to be torn down, by said Inspector of Buildings, or by his order, and the expense of tearing down any part of the whole of such structure shall be charged to the person owning the same, and shall be added to the tax duplicate and become a lien against the property."
The validity of such ordinances is generally recognized. The power of municipalities to declare and abate public nuisances and the right of summary action existed at common law under the police powers. It has not been impaired by the constitutions, for, if the property has in fact been used in violation of the law and is a public nuisance, the owner has no just reason to complain, and, if not, he has recourse to the courts. If a party cannot get a hearing or remedy in advance of the destruction or seizure of his property, he has the right to it afterward by an action for its value; the burden being upon the defendant to prove justification under the statutes. Cooley on Constitutional Limitations, 740, 741; McQuillin on Municipal Corporations, vol. 3, sec. 904; 4 R.C.L. 413; 19 R.C.L. 877; 20 R.C.L. 488; Lawton v. Steele, 152 U.S. 135, 14 S. Ct. 499, 38 L. Ed. 385; North American Cold Storage Company v. Chicago, 211 U.S. 306, 29 S. Ct. 101, 53 L. Ed. 195, 15 Ann. Cas. 276. This court has recognized such power in municipalities. Thus it is said in Polsgrove v. Moss, 154 Ky. 408, 157 S.W. 1133, 1136:
"In the exercise of the police power by the city, property which is a menace to public safety or health may be destroyed without compensation when this is necessary to protect the public, but the public necessity is the limit of the right."
But a distinction is drawn between ordinances and action under them where there may be or was an emergency which required or appears to have demanded summary invasion of private property rights without judicial procedure before divesture in order to protect the public from the effect of a nuisance, and where there may be or was no such emergency and need for immediate invasion. Varden v. Mount, 78 Ky. 86, 39 Am. Rep. 208; Joyce v. Woods, 78 Ky. 386; McGee v. Kennedy, 131 Ky. 27, 114 S.W. 298, 753; Allison v. Cash, 143 Ky. 679, 137 S.W. 245; Polsgrove v. Moss, supra; Board of Trustees v. McMurtry, 169 Ky. 457, 184 S.W. 390; Purnell v. Maysville Water Company, 193 Ky. 85, 234 S.W. 967, 23 A.L.R. 223; Galanty & Alper v. City of Maysville, 176 Ky. 523, 196 S.W. 169; Sevier v. City of Barbourville, 180 Ky. 553, 204 S.W. 294, L.R.A. 1918F, 1128; City of Corbin v. Hays, 244 Ky. 33, 50 S. W. (2d) 31.
The terms of the ordinance at bar, particularly that part under which this procedure was taken, as quoted above, appear to authorize summary action only where the emergency of danger exists. The appellee does not vigorously question its validity, for he says he has had his day in court. It appears to have been a profitable one, and all indignation and wounds seem to have been soothed by the liberality of the jury. But he has maintained, and continues to maintain, that his property did not come under the ban of the ordinance and that no right to destroy it existed. The appellant challenges those contentions, and here insists that the verdict is flagrantly against the evidence.
There was submitted to the jury the issue whether the buildings were in such unsafe condition as to endanger life or property and could not be repaired or rendered safe by the application of precautionary measures. If it found that they were not in that condition, an award in damages representing the market value of the structures immediately before they were torn down was directed.
Before giving a resume of the evidence to test the point raised, it should be said that the building inspector testified that on February 28, 1931, he mailed a letter to the owner at his regular address calling attention to the fact that the property involved was open, falling to pieces, and in a very...
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