Shelton v. Lentz

• Decision Date: 02 July 1915
• Docket Number: No. 13992.,13992.
• Citation: 178 S.W. 243,191 Mo. App. 699
• Parties: SHELTON v. LENTZ et al.
• Court: Missouri Court of Appeals

178 S.W. 243

191 Mo. App. 699

SHELTON v. LENTZ et al.

No. 13992.

St. Louis Court of Appeals. Missouri.

July 2, 1915.

Rehearing Denied July 15, 1915.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by W. F. Shelton, Jr., against Margaret L. Lentz and another. From a judgment of dismissal, plaintiff appeals. Reversed, and cause remanded.

Jones & Jones, of Kennett, for appellant. Fort & Zimmerman, of Dexter, for respondents.

ALLEN, J.

This is a suit in equity to enjoin the erection of a "brick veneer" building within the fire limits of the city of Kennett, Mo., contrary to the provisions of an ordinance of said city. Defendant Mrs. Lentz is the owner of lot 43 of block 12 of the city of Kennett, and at the time of the institution of this suit was proceeding to erect thereupon a building of the character mentioned, and had partly constructed the same. Plaintiff is the owner of property in this block and of other buildings in the vicinity. The court below issued a temporary injunction, but upon a hearing upon the merits found the issues in favor of defendants, dissolved the temporary injunction, and dismissed plaintiff's bill, whereupon plaintiff appealed to this court.

The building which Mrs. Lentz was proceeding to erect was to consist of a wooden framework placed upon a concrete foundation, with the outer walls thereof veneered with brick i. e., having one layer of brick outside of and coating the frame structure. A municipal ordinance prohibits, within a certain district, the erection of any frame building or of any building "the outer walls of which shall be composed in whole or in part of wood," or of any building, "the outer walls of which shall be veneered or faced with metal or brick (commonly called brick veneer)." And it is admitted that the building, whose erection is sought to be restrained, it situated within the fire limits, as fixed by ordinance, being in the extreme southwest corner thereof.

It appears that block 12 is bounded upon the west by Jackson street, which extends north and south, upon which lot 43 fronts; and that this block extends east to Main street. The evidence is that plaintiff owns a frame building in block 12, fronting upon Jackson street, about 50 feet from the building here in question; and it also appears that he owns two frame buildings on the east side of block 12 fronting upon Main street, as well as other property in an adjoining block. Plaintiff's frame buildings are old buildings, which were erected prior to the extension of the fire limits to include this portion of the city.

Though the erection of a building of the character mentioned, within the fire limits aforesaid, is forbidden by ordinance, Mrs. Lentz obtained a so-called permit from the municipal authorities purporting to authorize her to erect such a building; and, having obtained this, she proceeded with the erection thereof, until halted by the issuance of the temporary injunction.

The action proceeds upon the theory that plaintiff will suffer a peculiar and irreparable injury by the erection of the building in question in that it will greatly endanger his property, depreciate the value thereof, and increase the insurance thereupon. Such are the allegations of the petition; and it is alleged that the legal authorities of the city have refused to prohibit the violation of the ordinance forbidding the construction of such buildings within the fire limits, and that plaintiff is without remedy at law.

The answer admits that defendant Mrs. Lentz is proceeding to erect a building of the character mentioned in the petition, upon the premises in question, but avers that she is within her legal rights in so doing, and that plaintiff is not entitled to the relief sought. After admitting the existence of the ordinance pleaded in the petition, and that the building in question is within the fire limits of the city, it is averred that the ordinance prohibiting the erection within such fire limits of any "brick veneer" building is "unreasonable, arbitrary, unconstitutional, and void, and that the city of Kennett, in passing said ordinance, went beyond the power granted to it by its charter and did not exercise such powers as were granted t,) it in a reasonable manner."

The record does not disclose the theory pursued by the trial court in dismissing plaintiff's bill. There is no constitutional question in the case. If there were, as a matter of course, we would have no jurisdiction. There is no point made here that we are without jurisdiction by reason of the fact that a constitutional question is involved; and such point would not be good if made for the reason that the answer of defendants below was not such as to raise any constitutional question. The mere allegation that the ordinance is "unreasonable, arbitrary, unconstitutional, and void," without pointing out the particular provision or provisions of the constitution asserted to have been violated thereby, raises no constitutional question whatsoever.

It may be said, however, that the ordinance here involved is altogether unlike that passed upon by the Supreme Court in Hays v. City of Poplar Bluff (Sup.) 173 S. W. 676, which purported to make it unlawful, within certain established fire limits, to construct buildings of a certain character without having obtained special permission from the mayor and city council. The ordinance before us upon its face purports to absolutely prohibit the erection of buildings of the character mentioned therein, within fire limits. But it appears that the city authorities sometimes granted "permits" to property owners to erect buildings in violation of the ordinance, at least in certain sections within the fire limits. And a permit was so issued to the defendant Mrs. Lentz in the instant case. That such a permit is a nullity and constitutes no defense to this action is conceded by respondents in their brief before us.

Respondents contend that an injunction will not lie to restrain the erection of the building in question, though the SE me is being erected confessedly in violation of the municipal ordinance aforesaid. It may be conceded that the general rule is that equity will not interfere to restrain the violation of a municipal ordinance, nor to prevent the commission of a crime, at the instance merely of a citizen who suffers no special or peculiar injury from the doing of the act sought to be restrained, different from that suffered by any other citizen. As a rule, a court of equity will not, at a suit of the city, restrain a threatened violation of an ordinance thereof regulating the erection of buildings, for the purpose of affording greater security against loss by fire. See First Nat. Bank at Mt. Vernon v. Sarlls et al., 129 Ind. 201, loc. cit. 203, 204, 28 N. E. 434, 13 L. R. A. 481, 28 Am. St. Rep. 85, and authorities cited. Nor will a suit in equity lie at the instance of an individual when brought solely for the enforcement of the ordinance and not because of any special or peculiar damage threatened to the plaintiff. Caskey v. Edwards 128 Mo. App. 237, 107 S. W. 37; Mason v. Deitering, 132 Mo. App. 26, 111 S. W. 862; Bank v. Sarlls, supra.

However, the great weight of authority is to the effect that where it appears that the erection of a building, in express violation of a valid municipal ordinance, will work special and peculiar injury of an irreparable nature to the plaintiff, he may maintain a suit in equity to enjoin the erection thereof, and that:

"It is only when the injury is general, and public in its effects, and no private right is violated, in contradistinction to the rights of the rest of the public, that individuals are precluded from bringing private suits for the violation of their individual rights." Bank v. Sarlls, supra, 129 Ind. loc. cit. 204, 28 N. E. 435, 13 L. R. A. 481, 28 Am. St. Rep. 85.

See, also, Bangs v. Dworak, 75 Neb. 714, 106 N. W. 780, 5 L. R. A. (N. S.) 493, 13 Ann. Cas. 202; Kaufman v. Stein, 138 Ind. 49, 37 N. E. 333, 46 Am. St. Rep. 368; Griswold v. Brega, 160 Ill. 490, 43 N. B. 864, 52 Am....