Syllabus
by the Court.
Under
the laws of this state, the police regulations of a city
including the adoption and maintaining of fire limits, are
not made and enforced in the interest of the city in its
corporate capacity, but in the interest of the public; and
therefore a city is not liable for the acts of its officers
in attempting to enforce such regulations, including the
wrongful removal and destruction of frame buildings claimed
to be kept and maintained within such fire limits.
A city
not being liable for the wrongful acts of its officers in
attempting to enforce the police regulations of such city, in
order to obtain an injunction against the city council as
such, and its city officers, restraining them from wrongfully
and unlawfully removing and destroying frame buildings within
the fire limits, it is not necessary to allege in the
petition that the city is insolvent, but it is necessary to
allege the insolvency of the individual officers, for the
reason that they would be personally liable for such wrongful
and unlawful destruction of property, and the owner of the
buildings so destroyed would have an adequate remedy at law
against them for the damages sustained by him.
Ordinarily
the measure of damages for the removal or destruction of
buildings from real estate to which they are attached as a
part thereof is what it would cost to replace them, not
exceeding the value of the entire property, but if for any
reason the buildings could not be replaced, the measure of
damages would be the difference in the value of the entire
property before and after the removal or destruction of the
buildings.
Commissioners'
Opinion, Division No. 4. Error from Superior Court, Pittsburg
County; W. C. Liedtke, Judge.
Injunction
by John Silva against the City Council of the City of
McAlester and others. Judgment for defendants, and plaintiff
brings error. Affirmed.
Guy L
Andrews, of McAlester, for plaintiff in error.
ROBBERTS
C.
The
plaintiff filed his petition in the superior court of
Pittsburg county, praying:
"That the city council of the city of McAlester, and B
A. Enloe, H. F. Schreiner, and Wallace Bond, its members, and
H. F. Schreiner as commissioner of public works of said city,
be restrained and enjoined from demolishing, destroying, and
removing certain buildings belonging to plaintiff, or in any
way authorizing any one else to do so."
The
plaintiff's petition is as follows:
"That the city of McAlester is a city of the first
class, in Pittsburg county, state of Oklahoma. That the
defendants B. A. Enloe, Jr., H. F. Schreiner, and Wallace
Bond constitute the city council of the city of McAlester,
and H. F. Schreiner, is the commissioner of public works of
said city. That plaintiff is a resident of Pittsburg county,
state of Oklahoma, and is owner and in possession by his
tenants of lot 3, in block 350, in the city of McAlester, the
same fronting north on Grand avenue, and about midway between
First and Main streets. That there is located and standing on
said lot two frame or wooden buildings, the property of this
plaintiff. That said buildings are of the value of more than
$500. That the defendants, the city council of the city of
McAlester, and B. A. Enloe, Jr., H. F. Schreiner, and Wallace
Bond, as members of the city council of the city of
McAlester, and H. F. Schreiner as commissioner of public
works of said city are, without right or authority,
threatening and are about to forcibly enter upon said
property and tear down, destroy, and remove said wooden
buildings above mentioned, and unless restrained from so
doing by this honorable court, the defendants will wrongfully
and without right forcibly enter thereon and destroy and
remove said buildings from said lot on which they are now
standing. That the buildings are in the fire limits of
McAlester, and, if destroyed, as is about to be done by
defendants, the plaintiff will not be allowed to replace same
by similar buildings. And plaintiff alleges that if said
buildings are torn down, destroyed, and removed, it will
occasion him irreparable injury, in that it will deprive him
of his property, and the rents and profits arising from same,
and that said damage would not be susceptible of measurement
in a suit at law for the reason that the profits arising from
the renting of said buildings could not be determined, and
would be speculative and a continuing damage. And plaintiff
further shows to the court that he is without any plain,
adequate, and speedy remedy at law. Wherefore plaintiff prays
that the defendants, the city council of the city of
McAlester and B. A. Enloe, Jr., H. F. Schreiner, and Wallace
Bond, its members, be restrained and enjoined from
demolishing, destroying, and removing the buildings
aforesaid, or in any way authorizing any one else so to do,
and that the said defendant H. F. Schreiner, as commissioner
of public works of the city of McAlester, be restrained and
enjoined from demolishing, destroying, and removing the
buildings aforesaid, or in any way authorizing any one else
so to do. And for such further relief as to the court may
seem equitable and just."
Attached
to the petition is an affidavit of Charles Henry, who states,
in substance, that he is--
"a carpenter and contractor of 28 years' experience;
that he examined the buildings within six days before the
filing of the petition; that they were built upon substantial
wooden pillars, which stand upon stone footings; that said
buildings are solid and substantial, and there is no
possibility of them falling under ordinary circumstances.
Said buildings are well ventilated and in a sanitary
condition."
The
affidavit is not marked as an exhibit to the petition, but
appears to be in support of the allegations. A general
demurrer to the petition was filed by defendants, charging
that said petition does not state facts sufficient to entitle
the plaintiff to the relief sought, which was sustained by
the court and exceptions saved. Plaintiff declined to plead
further, announced that he would stand on his petition, and
brings error.
It is
plain to be seen that the only question presented for
consideration is, Are the allegations in the petition
sufficient to entitle the plaintiff to the relief sought, and
thereby did the lower court err in sustaining the demurrer to
the plaintiff's petition? To determine this question it
will be necessary to make a somewhat careful analysis of the
language of the petition. There is no allegation in the
petition that the officers named therein were acting, or
threatening to act, under legal or proper authorization of
the city council as such. There is no allegation that the
city council had taken action of any kind, by serving notice
on plaintiff, or in any way giving him an opportunity to be
heard as to the right or authority of the city or the city
council, or any other officers of the city, to enter upon and
abate the buildings referred to. The petition alleges that
the buildings are within the fire limits, but there is no
allegation that the city of McAlester has an ordinance
establishing fire limits therein, or providing for removal or
abating buildings within the fire limits. There is no showing
as to whether the buildings were erected on the premises...
