State ex rel. Sale v. Stahlman

• Decision Date: 13 November 1917
• Docket Number: 3515.
• Parties: STATE EX REL. SALE v. STAHLMAN, MAYOR, ET AL.
• Court: West Virginia Supreme Court

94 S.E. 497

81 W.Va. 335

STATE EX REL. SALE v. STAHLMAN, MAYOR, ET AL.

No. 3515.

Supreme Court of Appeals of West Virginia.

November 13, 1917

Submitted November 6, 1917.

Syllabus by the Court.

Under a provision of its charter authorizing it "to regulate the height, construction, and inspection" of new buildings erected within its corporate limits, a city cannot prevent the owner of a lot situated in a built-up section and between three and four story buildings, from erecting a one story building thereon, by refusal of permission to erect it.

Properly construed, such charter provision confers authority respecting the height of buildings, only to limit or restrict it for the safety of persons and property.

Prevention of the erection of buildings in a city, lower than adjacent and neighboring ones, has no such tendency to prevent danger from fire, or the spreading thereof, as will justify or validate it under the police power of the state.

A limitation upon an owner's use of his property cannot be imposed by law for the benefit of other property owners.

Nor can it be imposed only to effect symmetry or ornamentation of a city, street, or section, otherwise than under the power of eminent domain, allowing compensation, if at all.

Mandamus by the State, on the relation of Graham Sale, against C. O Stahlman, Mayor, etc., and others. Peremptory writ awarded.

John Randolph Tucker, of Welch, for petitioner.

James S. Kahle, of Bluefield, for respondents.

POFFENBARGER J.

Relying upon a provision of its charter (chapter 9, Acts of 1915) found in section 7 thereof, and conferring upon it, among others, the power "to regulate the height, construction and inspection of all new buildings" thereafter to be erected within its territory, the City of Bluefield has refused to give the relator a permit to erect a building on a lot owned by him, situated in the business section of the city and fronting on Princeton avenue, one of its principal thoroughfares, on the sole ground of its character as to height, his purpose being the erection of a one story building. By some regulation not fully disclosed in the pleadings, the city endeavors to enforce its policy of prevention of the erection of buildings less than three stories high, in that section, and has refused the permit in pursuance thereof. He seeks a writ of mandamus to compel issuance thereof.

Ordinarily, such charter provisions confer power to limit or restrict the height of buildings, not to require it, as a means of promotion or conservation of the value of adjacent or neighboring property or attainment of æsthetic ideals or purposes of the community or municipal authorities, and their justification and validity rest upon the police power of the state, under which the Legislature may directly or indirectly provide for the public health, morals, safety, convenience, and prosperity. Welch v. Swasey, 193 Mass. 364, 79 N.E. 745, 23 L.R.A. (N. S.) 1160, 118 Am.St.Rep. 523; Commonwealth v. Boston Advertising Co., 188 Mass. 348, 74 N.E. 601, 69 L.R.A. 817, 108 Am.St.Rep. 494; People v. D'Oench, 111 N.Y. 359, 118 N.E. 862; Fruth v. Board of Affairs, 75 W.Va. 457, 84 S.E. 105, L.R.A. 1915C, 981; Eubank v. Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156, 42 L.R.A. (N. S.) 1123, Ann.Cas. 1914B, 192; District of Columbia v. Brooks, 214 U.S. 138, 29 S.Ct. 560, 53 L.Ed. 941; C., B. & Q. Railway Co. v. Drainage Commissioners, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596, 4 Ann.Cas. 1175.

Public safety from the danger of fire is the only ground upon which the city endeavors to justify and sustain its regulatory...