The Vill. of Louisville v. Webster

• Decision Date: 22 January 1884
• Citation: 108 Ill. 414,1884 WL 9728
• Parties: THE VILLAGE OF LOUISVILLEv.NOAH WEBSTER et al.
• Court: Illinois Supreme Court

108 Ill. 414

1884 WL 9728 (Ill.)

THE VILLAGE OF LOUISVILLE

v.NOAH WEBSTER et al.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 22, 1884.

APPEAL from the Circuit Court of Clay county; the Hon. CHAUNCEY S. CONGER, Judge, presiding. Mr. D. C. HAGLE, and Mr. F. G. COCKRELL, for the appellant:

Cities and villages are invested with power to prescribe fire limits, and direct that all wooden buildings within those limits, when damaged by fire, decay or otherwise, to the extent of fifty per cent of their value, shall be torn down and removed. Hurd's Stat. 1881, p. 219, sec. 62.

A regulation of the use of property, or a prohibition of its repair when partially destroyed, is not a condemnation to the public use. Brady v. Northwestern Ins. Co. 11 Mich. 425.

In support of the power of municipal corporations to prevent the erection of wooden buildings within the fire limits, and to cause the removal of such as are damaged fifty per cent, and are unsafe, as nuisances, and as an exercise of police powers, counsel cited Harvey v. Dewoody, 18 Ark. 252; Ferguson v. City of Selma, 43 Ala. 398; Toledo, Wabash and Western Ry. Co. v. City of Jacksonville, 67 Ill. 46; Cooley on Const. Lim. (5th ed.) 471; Wadleigh v. Gilman et al. 3 Fairf. 403; King v. Davenport, 98 Ill. 305.

Mr. RUFUS COPE, for the appellees:

The power to declare what shall be a nuisance is not without limit, nor can it be exercised arbitrarily. An old wooden building, notwithstanding a depreciation in value of a certain per cent from age, may be as safe as it ever was, or as the newer structures beside it.

The power to prohibit the erection or repair of wooden buildings within established fire limits is conceded, as a reasonable restriction on the use of property. It is not a taking of property for public use. The destruction of buildings, the erection of which the law has permitted and which usage has sanctioned, and which are recognized as property rightfully created, is a taking of property; and if by the public, for any public use or necessity, it can not be done without compensation, except in clear violation of the constitution. Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

This was a proceeding under section 3 of an ordinance of the village of Louisville, in which there was judgment for the defendant, and the plaintiff (the village) appealed.

The first section of the ordinance establishes fire limits, which embrace that portion of the village immediately surrounding and cornering on the public square, and prohibits the erection or repair of any wooden building within the prescribed limits without permission. Section 2 is: “When any building standing, fronting or cornering on the public square shall become damaged by fire, decay or otherwise, to the extent of fifty per cent of its value, it shall be deemed and is hereby declared to be a nuisance.” Section 3 provides that on complaint, under oath, to any justice of the peace, that any building as aforesaid has become damaged, as above named, to the extent of fifty per cent of its value, the justice shall issue a summons to the owner to appear and answer; that on the trial the issue shall be, “Is the property damaged to the extent of fifty per cent of its value,” and shall be tried by the justice or a jury, and if the justice shall find, or the verdict of the jury shall be, that the building is so damaged, the justice shall render judgment accordingly, and shall issue a writ to the village constable, commanding him to remove any person in possession, and to tear down and remove the building. Section 4 provides that the village constable, on receiving the writ, shall remove the persons and advertise the building for sale, etc., and the purchaser shall remove the building. The costs shall first be paid out of the...