Mosher v. City of Phoenix

• Decision Date: 21 May 1919
• Docket Number: Civil 1640
• Citation: 181 P. 170,20 Ariz. 351
• Parties: HATTIE L. MOSHER, Appellant, v. CITY OF PHOENIX, a Corporation, and HERBERT J. MANN, Appellees
• Court: Arizona Supreme Court

181 P. 170

20 Ariz. 351

HATTIE L. MOSHER, Appellant, v. CITY OF PHOENIX, a Corporation, and HERBERT J. MANN, Appellees

Civil No. 1640

Supreme Court of Arizona

May 21, 1919

APPEAL from a judgment of the Superior Court of the county of Maricopa. Frank H. Lyman, Judge. Affirmed.

Mr. J B. Woodward, for Appellant.

Mr. R E. Sloan, City Attorney, for Appellees.

OPINION

ROSS J.

From an order sustaining a general demurrer to appellant's complaint, and a judgment dismissing her complaint and awarding costs to appellees, this appeal is prosecuted.

The complaint sets forth in substance that appellant is the owner of real estate in Phoenix with a frontage of 352 feet on Central Avenue, extending back 300 feet between Taylor and Polk Streets; that the property is on the fringe of the business section of Phoenix, too near the same and the taxes thereon too heavy to justify the use of said property as residence property, and at the same time is too far removed from the business to warrant a placing of permanent improvements thereon in the form of substantial business structures or blocks of business buildings; that appellant planned erecting thereon a colony or group of buildings at a "rental price . . . within the command of all deserving mechanics"; that in May, June and August 1917, the city granted her permits to build 13 buildings thereon under Ordinance 42; that she proceeded to, and did, construct some of the buildings under permits; that by petty devices, appellee Mann, city inspector, obstructed her building operations and caused her serious loss, and with the aid of the city commission, has prevented her from improving her property and debarred her in the lawful use of same, thereby destroying and rendering her property rights therein valueless, and is threatening to tear down one or more of her buildings, and has caused her arrest on the false assumption that she had transgressed the laws of the city in the erection of buildings under permits; that she has been arrested "five times for the alleged cause of building without a permit, and interior finish work on the same," and has driven her workmen from the premises and refused permission to continue work upon said buildings, and has revoked five of the permits therefore granted.

The allegation of conformity with the ordinances of the city in the construction of buildings is as follows:

"That each building in process of completion, and to be completed, is or will be built with cement floors, cement walks leading to or around each building, and solid cement between each building, the roof and side coverings to be used being incombustible material, and all work conforming to the requirements of said Ordinance [42], not one of which is a menace by reason of its construction, or a fire risk, to the neighboring property."

The complaint sets forth Ordinance 42; also Ordinances 197, 198 and 199, passed September 10 and 11, 1917, as emergency measures.

By Ordinance 42, the construction of frame and wooden structures within the fire limits as established is prohibited, except "(B) one-story sheds confined to the rear half of the property, not abutting on a street, and not nearer than 20 feet to any other structure." It further provides for the height, size and material to be used in structures.

Ordinance 197 establishes a special fire limits district, including in its boundaries appellant's property and a great many other blocks of the city; the appellant's property theretofore being in the general fire limits.

Ordinance 198 defines the powers and duties of the city inspector of buildings, and vests in him large discretionary powers relating to the mode and manner of construction and material used in the erection, alteration and repair of any building or structure, and

Ordinance 199 amends subdivision B of Ordinance 42, quoted above, by providing, among other things, that "sheds must have no interior finish, such as wainscoting, ceiling, and the like."

Appellant asserts in her complaint that these ordinances and their enforcement by the city authorities deprive her of her property without due process of law, in...