Roanoke v. Bolling

• Decision Date: 29 January 1903
• Citation: 101 Va. 182,43 S.E. 343
• Court: Virginia Supreme Court
• Parties: CITY OP ROANOKE et al. v. BOLLING.

43 S.E. 343

101 Va. 182

CITY OP ROANOKE et al.

v.BOLLING.

Supreme Court of Appeals of Virginia.

Jan. 29, 1903.

MUNICIPAL CORPORATIONS—FIRE LIMITS—REPAIR OF BUILDINGS—NUISANCES—POWER TO DETERMINE—INJUNCTION.

1. A city charter giving the council the right to prescribe limits within which wooden buildings may be erected, to control and regulate the erection of buildings, to abate nuisances, and to enact ordinances for the good and safety of the city and its citizens, does not authorize an ordinance delegating to the city engineer the power to determine arbitrarily that a wooden building, which was not within the fire limits when erected, has been more than half destroyed by fire, and that it was not in good and sound condition previous to the damage, and to refuse, on such grounds, to permit it to be repaired.

2. Where the officers of a city wrongfully refuse to permit a building which was lawfully constructed and has been damaged by fire to be repaired, injunction may issue.

Appeal from circuit court of city of Roanoke.

Action by Bartlett Boiling against the city of Roanoke and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

C. B. Moomaw and A. P. Staples, for appellants.

Watts, Robertson & Robertson, for appellee.

CARDWELL, J. The appellee, Bartlett Boiling, is the owner in fee of certain land in the city of Roanoke, on the southwest corner of Church avenue and Henry street, and running back along first street southwest to Luck avenue; and upon this land he built in 1888 a double wooden building, which was thereafter, and until the institution of this suit, rented and used for livery stable purposes. On the 2d day of December, 1901 this building was injured by fire; and appellee thereupon applied, in accordance with the ordinances of the city of Roanoke, to its engineer, J. H. Wingate, for a permit to repair it, which permit was not only refused, but appellee was notified in writing, December 4, 1901, by the mayor of the city, that he had, upon information derived from the city engineer, condemned the building as a menace to public safety, and required that it be removed within 30 days, whereupon appellee filed his bill in the circuit court of Roanoke city, praying an injunction against the city and Jas. H. Wingate, city engineer, restraining them from condemning or otherwise interfering with the enjoyment and possession of his said property, and further praying a mandatory injunction requiring the city to issue a permit allowing him to repair his said building. Upon the hearing of the cause on the pleadings and proofs for both complainant and defendants, the circuit court decreed the relief prayed, and from this decree the defendants appealed.

It appears that the building in question was lawfully erected, and was not within the fire limits prescribed by the ordinances of the city of Roanoke at the time of its erection, but was subsequently brought within such limits by an ordinance adopted either in 1895 or 1896; that the building was of the same character of construction and in as good condition previous to the occurrence of the fire which damaged it as all other buildings used for similar purposes, of which there are several within a radius of a few hundred feet, and also within the fire limits of the city; that from time to time, as the use of the building, from its nature, made such repairs necessary, repairs sufficient to keep it in reasonably and substantially sound and safe condition were placed upon it; and that as late as April, 1899, about 18 months before the fire, extensive repairs were placed on the property, and the building was inspected and accepted by James H. Wingate, city engineer, as being in sound and good condition.

No serious effort was made by appellants to show that as much as one-half of this building, "exclusive of its foundation, " was destroyed by fire, but to prove that the cost of repairs desired to be made would exceed the value of the portion of the building left standing, and some of the witnesses for this purpose do give it as their opinion that such would be the case. On the other hand, the preponderance of proof is that more than one-half of the building, "exclusive of its foundation, " was left after the fire occurred, and that it...