Weber v. City of Cheyenne

Decision Date09 January 1940
Docket Number2145
PartiesWEBER v. CITY OF CHEYENNE
CourtWyoming Supreme Court

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Suit by Jake Weber against the City of Cheyenne to restrain the enforcement of a zoning ordinance. From a judgment for defendant, plaintiff appeals.

Reversed with instructions.

For the appellant, there was a brief and oral argument by Edward T Lazear of Cheyenne.

The plaintiff was the real party in interest as shown by the evidence. Plaintiff appealed to the Board of Adjustment. The city and not the city engineer is the zoning authority. 1933 Code, p. 185. The city had knowledge of restrictions in plaintiff's contract. Plaintiff was entitled to an injunction. Burgess v. Magarian (Iowa) 243 N.W. 356; Dolan v. Brown, 170 N.E. 425; Snow v. Van Dam (Mass.) 197 N.E. 224; Vorenberg v. Bunnell, 48 A. L. R. 1431; Ludgate v. Somerville, 54 A. L. R 837; Heitkemper v. Schmeer (Ore.) 29 P.2d 540; Ludgate v. Somerville (Ore.) 256 P. 1043; Crawford v. Senosky (Ore.) 247 P. 306. The following authorities support restrictions on use of real property as affected by zoning laws. Seminary v. Evanston, 156 N.E. 778; 48 A. L. R. 1437; Foster v. Gas & Electric Company, 265 P. 81; Mosier v. Estates, Inc. , 31 P.2d 209; Williamson v. Bakeries of Indiana, 193 N.E. 717; Reynolds v. Schmidt, 219 P. 405; Clark v. Holmes (Okla.) 120 P. 642; Jackson v. McGilbray (Okla.) 148 P. 703; Bancroft's Pleading, Vol. 1, p. 241.

For the respondent, there was a brief and oral argument by H. B. Henderson, Jr. of Cheyenne.

Plaintiff is not the real party in interest. Respondent had no notice of reservations from recorded instruments and the dedicated plat. Plaintiff's remedy is against the grantor. Actions must be prosecuted in the name of the real party in interest. Sec. 89-501, R. S. 1931. Neither plaintiff nor Williams was the real party in interest. 47 C. J. 22. The lots being dedicated without reservation, the city was without notice. Bassett on Zoning, p. 184. Plaintiff had ample opportunity to protect his interests. Freeman v. Board of Adjustment (Mont.) 34 P.2d 534. There was no damage that would justify injunctive relief. The zoning ordinance is reasonable. Colorado Springs v. Miller (Colo.) 36 P.2d 161. The authorities cited by appellant are distinguishable from the present case on the facts. The zoning ordinance is a proper board regulation. Sec. 22-1917, R. S. 1931.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

Direct appeal proceedings bring this cause here to review a judgment of the district court of Laramie County. The material facts to be considered are in substance these: In February, 1937, the Paul H. Moore Realty Company was the owner of certain real estate adjacent to the then boundaries of the City of Cheyenne, Wyoming, which this Company had arranged in blocks, with subdivisions into lots. On the 6th of that month, said Company entered into a written contract with one Jake Weber, a resident of the city aforesaid, whereby Weber agreed to purchase from that Company "Lots Thirteen (13) and Fourteen (14) in Block Nine (9) of a proposed subdivision to the City of Cheyenne, Wyoming, to be known as Moore Haven Heights Addition, Third Filing," to the said city. This contract, among other provisions, contained the following:

"This land is sold for business purposes only and no more than one building is to be built on each lot. Buildings to be of brick construction and to cost not less than $ 5000.00 when completed. Front of building erected on above described land to be set back from the front lot line at least thirty-five (35) feet. No unsightly structures are to be erected on above described land.

"All of the above restrictions are to be included in any deed which the parties hereto, their successors, heirs or assigns shall give to this property."

The purchase price of the two lots was stipulated at $ 1,250.00, which was to be paid--a certain amount at the execution of the contract and the remainder in stated installments. On March 29, 1939, when the action presently to be mentioned was tried, Weber had paid something over $ 500.00 on the contract. The instrument itself was not recorded.

Some six weeks before the property embracing these lots was formally annexed to the City of Cheyenne, the President and Secretary of the Realty Company had a conversation with the Mayor of the City of Cheyenne in the latter's office in said City. In that conversation the City official aforesaid was informed, with reference to the restrictions on the lots set forth above, that the Company "had planned to have them into business." The Mayor made no comment in response to this information.

On June 7, 1937, the lots mentioned above, with other land owned by the Realty Company, were annexed to the City of Cheyenne by formal legal proceedings for that purpose. When Weber first learned that the City contemplated zoning this property and before the ordinance for that purpose was passed, he went to the Mayor of the City and notified him of the existence of the contract and that "it called for a business property," to which that official, as Weber testified, responded that "he had no intentions of any more businesses going into that area, and that it was just too bad for me to have had the lots." Thereafter the City zoned these lots 13 and 14 for residential purposes only. August 15, 1938, Weber again applied, with written petition, to the City Council of the City of Cheyenne to have the zoning of said lots changed so that they could be used for business purposes, as required by the terms of his contract. He also applied to the City Engineer for a permit to build a gasoline filling station on this property, but the permit was by that official denied. The matter was then referred to the City's Board of Adjustment under the zoning ordinance, and that body also, on the date last above mentioned, turned the application for a permit over to the City Council, stating in its minutes that it (the said Board) had no power to change the zoning, which change was necessary before any such permit could be granted. Thereafter, and on September 12, 1938, subsequent to published notice being given, the City Council of the City of Cheyenne, by formal vote, declined to make any change in the zoning of these lots, as applied for by Weber.

October 25, 1938, Weber, as plaintiff, instituted an action in the district court above named against the City of Cheyenne as defendant, to restrain it from enforcing that part of the zoning ordinance which undertook to classify said lots 13 and 14 as residential property only. After the cause came at issue it was tried to the court without a jury, with the result that after hearing the plaintiff's evidence, on defendant's motion, the district court found generally for the latter, and entered its judgment that the prayer of plaintiff's petition be denied and that the defendant be awarded its costs. The plaintiff has brought the case here claiming error.

At the trial of the action it was proven by plaintiff's undisputed testimony that he had a contract with another party for the sale of the lots aforesaid and the erection of a gasoline filling station upon them; that this contract was oral and the parties thereto were obligated, as plaintiff says, conditional only upon Weber's obtaining a change in the zoning of the lots aforesaid from residential to business purposes; that Weber has made the building plans and supplied an estimate of the cost of the building, and that these plans and estimate have been accepted by the other person. It does not appear that that party has, or will, pay anything on the purchase price until this litigation shall be concluded, and then only if a permit can be obtained for a filling station on said lots. The record establishes also that Lots 13 and 14 aforesaid were at the time of the trial of the action more valuable for business than for residential purposes; that the contract with the Realty Company was in full force and not in default of any kind; and that Weber still holds said contract as his own.

The plaintiff offered to prove "that the territory and area immediately north of Lots 13 and 14 in Block 9, from the area in the middle of Block 9 north along Central Avenue up to Eighth Avenue, and comprising Lots 1 and 2 in Block 9, Lots 13 and 14, and Lots 1 and 2 in Block 2, are now used for business purposes, and that business structures are immediately adjacent to and north of the plaintiff's property." However, upon objection by defendant being made that the offer was of evidence "incompetent, irrelevant and immaterial," the court ruled adversely to its reception, to which ruling plaintiff excepted, and the ruling is assigned here as error. It is also claimed for appellant that the judgment rendered by the district court is contrary to law.

The City of Cheyenne now contends that Weber could not maintain the action described above because he is not the real party in interest. This is said because he has tentative arrangements with a third party, as above related, regarding the latter's proposed purchase of the lots and the erection by Weber (whose business is that of a contractor) of a gasoline filling station, as heretofore stated. 47 C. J. 35 says that:

"A 'real party in interest' is one who has an actual and substantial interest in the subject matter, as distinguished from one who has only a nominal interest, having reference not merely to the name in which the action was brought, but to the facts as they appear of record. He must be the present owner of the right sought to be enforced, even though his ownership is of the nature of a special property or equitable interest in the...

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