Russell v. City of Fargo

• Decision Date: 10 September 1914
• Citation: 28 N.D. 300,148 N.W. 610
• Parties: RUSSELL v. CITY OF FARGO et al.
• Court: North Dakota Supreme Court

28 N.D. 300

148 N.W. 610

RUSSELL

v.CITY OF FARGO et al.

Supreme Court of North Dakota.

June 6, 1914.

Rehearing Denied Sept. 10, 1914.

Syllabus by the Court.

Evidence reviewed, and held: (a) That it is not shown that the building involved in this litigation had deteriorated 50 per cent. in value; (b) the evidence, showing that the condition of the building was such as to endanger the safety of pedestrians on the adjoining sidewalk, preponderates.

When fire limits are established in a city, within which buildings of certain classes may not be erected, a different rule relating to the powers of the city applies to buildings of such classes erected prior to the establishment of the fire limits than applies to those subsequently erected.

The owner of a building erected within territory subsequently included within fire limits acquires a vested property right therein, of which he cannot be deprived without some lawful reason.

The owner of a building holds it subject to the right of the public to prescribe reasonable safeguards and regulations for its protection, and the interests of the individual must, in such case, give way to the requirements necessary for public safety, but it must be clear that the safety of the public makes action necessary, and the right of the owner in his property cannot be sacrificed on mere guesswork or surmise.

The proper test as a basis for action by the authorities in protecting pedestrians from falling walls or similar dangers is not the percentage of deterioration, but rather the ability and willingness of the owner to make the structure safe.

Paragraphs 46 and 47 of section 2678, R. C. 1905, which section prescribes the powers of city councils, empower such councils to prescribe the thickness, strength, and manner of constructing stone, brick, and other buildings, and to provide for the inspection of all buildings, and authorize the city council to prescribe the limits within which wooden buildings shall not be erected or placed or repaired without permission, and to direct that all or any buildings within said limits, which shall be known as the fire limits, when the same shall have been damaged by fire, decay, or otherwise to the extent of 50 per cent. of the value, shall be torn down or removed, and to prescribe the manner of ascertaining such damage, and by ordinance provide for issuing building permits and appointment of building inspectors; and paragraph 57 of the same section empowers the city council to declare what shall be a nuisance and abate the same, and impose fines upon persons who may create, continue, or suffer nuisances to exist. In an attempt to exercise the power thus granted, the city council of Fargo enacted ordinances prescribing the fire limits and containing very lengthy and detailed regulations regarding the construction of buildings in said city, and especially within such limits. It makes the city engineer inspector of buildings, and requires a permit before the erection, construction, or material alteration or repair of any building in the city, and the submission of a statement regarding the dimensions, etc., together with full specifications and plans, to the building inspector, makes it unlawful for any one to proceed to construct or materially alter any building without such permit, and makes the alteration in or addition to any building already erected except necessary repairs not affecting the construction of the external walls, roofs, chimneys, or sidewalks, subject to the regulations of the ordinance. Section 57 of such ordinance makes it unlawful to repair any frame building within the fire limits, when it has been damaged by the elements or decay to the extent of 50 per cent. exclusive of the foundation, and provides a method for determining the extent of the depreciation. A fee of from $1 to $7 is required to be paid for the issuance of a building permit, the amount of the fee depending on the cost of the building or improvements. Held, that such provisions are not so unreasonable that this court can say they are invalid for the purposes for which they are intended and to which they are applicable.

Statutory provisions, giving municipal corporations power to prescribe fire limits and direct the removal of buildings therein, should receive a strict construction in favor of the owners of such buildings, and the power to destroy valuable property, lawfully erected, is inoperative and void, unless the thing is in fact a nuisance.

The requirement that a fee be paid for the examination of plans and specifications and the issuance of a permit, ranging from $1 to $7, according to the valuation, is not unreasonable.

The power conferred upon a city council and commission to determine whether proposed construction or repairs of buildings come within the provisions of the ordinance, and to abate a nuisance, is delegation of police power, and does not constitute judicial power in the sense that such power is vested by the Constitution in the courts.

Appeal from District Court, Cass County; C. A. Pollock, Judge.

Injunction by Clara B. Schmidt Russell against the City of Fargo, a corporation, and others. From a judgment dismissing the action, plaintiff appeals. Affirmed.

M. A. Hildreth, of Fargo, for appellant. Emerson H. Smith, of Fargo, for respondents.

SPALDING, C. J.

The object of this suit is to obtain a decree adjudging that the building ordinance of the city of Fargo, known as chapter 13 of the Consolidated Ordinances, as amended in section 9 of title 2, of chapter 2, and sections 1 and 2 thereof, by an ordinance approved June 16, 1910, is null and void; that certain proceedings instituted thereunder, as relating to a building owned by the plaintiff and appellant in July, 1913, situated on lots 1 and 2 of S. G. Robert's addition to the city of Fargo according to plat No. 2, be adjudged illegal and void, and that plaintiff have a permanent injunction restraining the defendants, city of Fargo, the members of its commission, and its city engineer, from interfering in anywise with the rights of the plaintiff with reference to such building, or interfering with her making such repairs as she may be advised are necessary with reference thereto, and for general equitable relief. The defendant's answer alleges that the defendant Anders was the city engineer and building inspector; that, as such, and under the powers conferred by the said chapter 13, he notified plaintiff in writing of his action in stopping repairs unlawfully being made on the building described; that the defendants had not, at any time, under consideration the tearing down of said building, but had acted solely to protect life and property, and especially of those using the sidewalks along said building, from injury, in case the building should collapse, by building a railing on the outside of said sidewalk, in front of and on the north side of said building, leaving openings therein to accommodate the occupants and pedestrians; that this was done, believing that there was imminent danger that a collapse would occur in case the four walls should be pulled off the foundation on the north side, which they were liable to be, and in which case it was believed that the north and east walls would fall outward on the sidewalk and endanger the lives of persons passing; that said block is an old frame building, covered with brick veneer, located within the fire limits, and during all times mentioned was damaged by the elements and decay more than 50 per cent. of its value above its foundation; that no building permit was or had been applied for to make repairs thereon, as required by the ordinance. It is then alleged that she had submitted the matter to arbitration in accordance with the terms of the ordinance, and deposited the sum of $30, as required by said ordinance, as fee; that three appraisers were chosen, one by the city of Fargo; that the plaintiff acquiesced in the appointment of one Larson to represent her, and that the two appointed a third; that they duly qualified and made a report that the building was damaged to an extent exceeding 50 per cent. of its original cost value; that, at her request, a more detailed report was made, and that thereafter she appeared in person and by attorney before the board of city commissioners, and was heard; that having acquiesced in the appointment of the appraisers she was estopped from denying the amount of percentage of damages found by them. Reference was made to section 57 of the ordinance referred to, and the dismissal of plaintiff's complaint was demanded, and judgment for costs, and the cost of establishing and maintaining the wooden railing heretofore referred to, and that she be enjoined from repairing said block, or any part thereof, or occupying the same. A trial was had, findings of fact and conclusions of law were made, and judgment entered. It was found that the Ely Block was located within the fire limits, was about 28 feet wide and 140 feet long, two stories in height, built about 30 years ago, veneered with brick, and had been damaged by the elements and decay to exceed 50 per cent. of its value above its foundation: that it was liable to collapse, and was a constant and imminent menace and danger to the lives of pedestrians passing on the sidewalks in front, and particularly on the north side thereof; that the city had caused a fence to be built along the sidewalk, shutting off travel, but had never attempted to tear down, destroy, or remove said building; that the acts of defendants were in conformity with the building ordinance and in consonance with the law of the state, constitutional and valid. Judgment was for the dismissal of plaintiff's complaint. This appeal is to secure a trial de novo.

The building known as the Ely Block, which is the subject of this controversy, faces east on Broadway in Fargo. The north side faces an avenue, and there is a sidewalk on the east end and north side. It is two stories...