State ex rel. Rudd v. Ringold

• Decision Date: 27 December 1921
• Citation: 102 Or. 401,202 P. 734
• Parties: STATE ex rel. RUDD v. RINGOLD, City Fire Chief.
• Court: Oregon Supreme Court

202 P. 734

102 Or. 401

STATE ex rel. RUDD v. RINGOLD, City Fire Chief.

Supreme Court of Oregon

December 27, 1921

In Banc.

Appeal from Circuit Court, Umatilla County; Gilbert W. Phelps Judge.

Mandamus proceeding by the State, on the relation of Charles H. Rudd against W.E. Ringold, Fire Chief of the City of Pendleton. Judgment of dismissal, and plaintiff appeals. Affirmed.

This is a mandamus proceeding instituted by plaintiff, a citizen resident, and voter of the city of Pendleton, because of the erection of a wooden building contrary to the ordinances of the city of Pendleton. The relator, as sole plaintiff originated the action. The proceeding is brought to compel the defendant, as fire chief of the city of Pendleton, to "enforce ordinances 405 and 1053; tear down and remove one wooden building, which is 11 feet wide, 40 feet long, 8 feet high, with a front 16 feet high, which is located on the east 11 feet of the west half of lot 1, block 74, Reservation addition to the city of Pendleton."

Upon plaintiff's petition, an alternative writ of mandamus was issued, to which the defendant interposed a demurrer, for the reasons, among others, that the plaintiff has no legal capacity to maintain the writ, and insufficiency of facts stated in the writ. The court sustained the demurrer to the writ, and dismissed the action. Plaintiff appeals.

Charles H. Rudd, of Pendleton, for appellant.

H.J. Warner and Edward J. Clark, both of Pendleton (H.J. Warner and Peterson, Bishop & Clark, all of Pendleton, on the brief), for respondent.

BEAN J. (after stating the facts as above).

Plaintiff assigns as error the sustaining of the demurrer.

While the location of the building is given in the writ, it is not directly alleged that it is located within the fire limits of the city of Pendleton. The plaintiff does not show that he owns buildings in close proximity to the one in question, so that he would sustain or be likely to sustain some injury differing from that sustained by the general public. The record does not show that this proceeding is authorized or prosecuted by the district attorney or any officer on behalf of the state or municipality.

Section 8 of Ordinance No. 405 of the city of Pendleton provides:

"Every tent or building or addition to a building or tent erected within or moved within said fire limits contrary to the provisions of this ordinance is hereby declared and ordained to be a nuisance and liable to be abated as such unless the same be removed within five days after notice so to do, given by the city marshal to the person occupying the same or the person owning the same or causing the same to be erected or repaired or removed within such limits, that officer together with such person or persons as he may summon to his assistance or as the common council may direct to assist him, shall immediately proceed to tear down and remove such building or tent or addition thereto, and the costs and expenses of so doing and of the removal thereof shall be charged against and collected from the owner of the land upon which the same shall be so unlawfully erected, moved or repaired, if the same shall have been so erected, moved or repaired with his consent, or from both such owner and such occupant, and proper proceedings for the purpose of collecting such costs and expenses may be instituted in the proper courts in the state of Oregon."

Section 10 of Ordinance No. 405, reads as follows:

"The common council may, in its discretion, upon application made, grant a permit to any person for the erection of a wooden building within said fire limits for water closet or woodshed, or a permit for the erection of a building as described in section 9 of this ordinance, of larger dimensions than therein specified."

It is noted that the writ does not show that the building in question was such a one as might be erected by permission of the common council, nor that the same was not so permitted.

Section 11 reads thus:

"The chief of the fire department of the city of Pendleton, under the authority conferred upon him by the ordinances of the said city, as fire warden of the said city, is hereby clothed and vested with full authority to enforce this ordinance."

The fire limits of the city, as they now exist are prescribed by Ordinance No. 1053.

A nuisance is public where it affects the rights enjoyed by citizens as part of the public--that is the rights to which every citizen is entitled. A...