Taber v. City of Benton Harbor
| Decision Date | 07 June 1937 |
| Docket Number | No. 165.,165. |
| Citation | 274 N.W. 324,280 Mich. 522 |
| Parties | TABER et al. v. CITY OF BENTON HARBOR. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit for an injunction by Roland B. Taber, and others against the City of Benton Harbor, a municipal corporation. Decree for defendant, and plaintiffs appeal.
Reversed and rendered.
Appeal from Circuit Court, Berrien County; Fremont Evans, judge.
Argued before the Entire Bench.
Gore, Harvey & Fisher, of Benton Harbor, for appellants.
W. M. Cunningham, of Benton Harbor, for appellee.
Defendant is a municipal corporation, having been incorporated and having adopted a charter in accordance with the provisions of the Home Rule Act, Act No. 279, Pub.Acts 1909, as amended (1 Comp.Laws, 1929, § 2228 et seq.). By zoning ordinance, the defendant city is divided into districts, those pertinent to this cause being known as residence districts ‘B’ and ‘C’. The ordinance in question prohibits the erection in district ‘B’ of buildings for use other than as single family dwellings, churches, schools, libraries, truck gardening, private clubs, and accessory buildings, and restricts the height thereof to 35 feet. In district ‘C’, buildings may be erected for uses permitted in district ‘B’ and for certain other enumerated purposes immaterial to this case. The height of buildings in district ‘C’ is limited to 55 feet or four stories.
Plaintiffs, residents of districts ‘B’ and ‘C’, filed their bill of complaint alleging that defendant had purchased a parcel of land, a portion thereof being within district ‘B’ and a portion within district ‘C’; that on the land so acquired defendant proposed to construct and was proceeding to construct a steel water tower and tank of a total height of 140 feet, said tank having a storage capacity of 600,000 gallons; that the construction of said tower and tank is a violation of the aforesaid zoning ordinance and of the rights, easements, and privileges of plaintiffs, and that its construction will otherwise result in irreparable damage to plaintiffs, constituting a taking of their property without compensation and without due process of law contrary to Mich.Const. 1908, art. 13, § 1. Plaintiffs pray for an injunction restraining defendant from constructing said tower and tank.
Defendant's answer denies that the construction of said tower and tank will result in irreparable damage to plaintiffs, but, on the contrary, due to proposed landscaping, will tend to beautify the area and thus enhance the value of plaintiffs' property and denies that it will constitute a taking of property without compensation and due process of law and further denies that said tower and tank will constitute a nuisance. Defendant further alleges that said ordinance is inapplicable to the municipality; that due to the increase in the volume of water necessary to satisfy the needs of its inhabitants the present water system has become inadequate; that the construction contemplated is necessary to enable defendant to make necessary repairs to the present system; that said improvement is essential to provide the city and its inhabitants with an adequate fire protection system, to provide its inhabitants and industries with sufficient water, and is for the benefit, health, comfort, and protection of its citizens.
From a decree dismissing the bill of complaint, plaintiffs appeal.
Whether the erection of the proposed structure would constitute a nuisance per se within the meaning of 1 Comp.Laws 1929, § 2639, obviously depends upon the prior determination of the paramount question involved as to whether the defendant may erect the tower and tank in question on the selected site contrary to the mentioned zoning ordinance.
Under the Home Rule Act, the city, as a permissible charter provision, may provide for the installation of a waterworks. 1 Comp.Laws 1929, § 2232. In accordance with the permission thus...
To continue reading
Request your trial
-
Town of Bloomfield v. New Jersey Highway Authority, A--114
...and under which rights of individuals have become fixed.' (268 N.Y.S. at page 177). To this same effect see Taber v. City of Benton Harbor, 280 Mich. 522, 274 N.W. 324 (Sup.Ct.1937); 8 McQuillin, Municipal Corporations, sec. 25.15; Annotation 171 A.L.R. 325. It thus appears even where the b......
-
McKinney v. City of High Point
...City, 1951, 15 N.J. Super. 363, 83 A.2d 448. A different conclusion was reached in the following three cases: Taber v. City of Benton Harbor, 1937, 280 Mich. 522, 274 N. W. 324, holds that a municipality was held bound by its own zoning ordinance concerning the height of buildings and could......
-
City of Pittsburgh v. Com.
...& Research Corp. v. State, 59 So.2d 874 (Fla.1952); Baltis v. Westchester, 3 Ill.2d 388, 121 N.E.2d 495 (1954); Taber v. Benton Harbor, 280 Mich. 522, 274 N.W. 324 (1937); Bloomfield v. New Jersey Highway Authority, 18 N.J. 237, 113 A.2d 658 (1955); Nehrbas v. Incorporated Village of Lloyd ......
-
City of Scottsdale v. Municipal Court of City of Tempe
...of Westchester, 2 Ill.2d 388, 121 N.E.2d 495; Green County v. City of Monroe, 3 Wisc.2d 196, 87 N.W.2d 827; Taber v. City of Benton Harbor, 280 Mich. 522, 274 N.W. 324; Nichols Engineering & Research v. State, 59 So.2d 874 (Fla.1952); Mayor Etc. of Savannah v. Collins, 211 Ga. 191, 84 S.E.2......