Wickstrom v. City of Laramie

• Decision Date: 19 December 1927
• Docket Number: 1402
• Parties: WICKSTROM v. CITY OF LARAMIE, ET AL. [*]
• Court: Wyoming Supreme Court

262 P. 22

37 Wyo. 389

WICKSTROM v. CITY OF LARAMIE, ET AL. ^[*]

No. 1402

Supreme Court of Wyoming

December 19, 1927

APPEAL from District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Suit by Alfred Wikstrom against the City of Laramie and others. Judgment for plaintiff, and defendants appeal.

Reversed and ordered dismissed.

F. E Anderson, for appellants.

The controlling question in this case seems to be whether the action of the municipality in revoking a building permit was a governmental or private function; the general rule seems to be that it is a governmental function, 28 Cyc. 1257. The council is not liable for damages, Abbots Mun. Corp. Sec 683; Mayor v. Williams, 33 Am. Rep. 304; Kent v Cheyenne, 2 Wyo. 6. The ordinance was valid and no liability was incurred, Trammell v. Russellville, 36 Am. Rep. 1-3; Love v. Atlanta, 51 A. S. R. 64; Mayor v. Wilson, 98 Am. St. Rep. 101. In a Colorado case the facts were different, but the principle involved was the same. Veraguth v. Denver, 76 P. 541. Negligence of employees in construction of building for County is not actionable, Hollenbeck v. County, 35 Am. Rep. 159; Davis v. City, 23 Am. Rep. 555; Caldwell v. City, 33 Am. Rep. 156.

Arnold & Arnold, for responndents.

A carpenter shop is not a public nuisance. The council proceedings had in considering this building permit were more in the nature of a summary court martial than a quasi judicial proceeding; the city, having caused damage by its act not included in any grant of power by the Legislature, is liable; Perkins v. Blauth (Calif.) 127 P. 50. The city was not attempting to exercise governmental functions; it is contended that the city was attempting to suppress a nuisance. If seeking to suppress a nuisance, it was acting in a private capacity, 28 Cyc. 1292, and is liable for damages sustained by property owners; City v. Mounger, 210 S.W. 240; City v. Reagan, 247 S.W. 816; Adams v. City, 129 N.W. 518; Dillon Mun. Corp. (4th ed.) Sec. 972. An ordinance in excess of the enabling statute is invalid, Cawley v. Co. (Mass.) 132 N.E. 365. "Zoning" is not a governmental function, Romar v. Board, 114 A. 248; In Re Kansas City Ordinance, 252 S.W. 404; Hollman v. City, 76 N.W. 1120; White v. Bernhart, 241 P. 368. Destruction of property under any form of building ordinance creates liability for damages, Wheeler v. City (Wash.) 87 P. 1061; McWilliams v. City (Ga.) 83 S.E. 945; Ramirez v. Cheyenne, 241 P. 710. Plaintiff is entitled to compensation for his damage caused by illegal action of city council in revoking a building permit, resulting in the destruction of plaintiff's property.

Before BLUME, Chief Justice, KIMBALL, Justice, and BROWN, District Judge. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

BROWN, District Judge.

The plaintiff, Alfred Wikstrom, on June 18, 1925, secured a building permit from the city engineer of defendant city, to construct a private garage and shop, 40 by 50 feet, one story high, at an estimated cost of $ 1000.00, on a lot in defendant city owned by him and situated within the residence portions of the city.

He immediately commenced its construction, excavating a basement 16 feet by 16 feet, cemented the walls thereof, put in a concrete foundation, laid the sleepers or joists for the floor and had the floor partly laid when he was stopped by the city. A protest had been lodged with the city council protesting against the erection of this building in that section of the city, by the property owners in the immediate vicinity of the proposed building, apparently on the ground that the building would damage their property and constitute a nuisance. A special meeting of the city council was called to consider the matter. At this meeting a motion was adopted that the permit be revoked and further investigation made. This suit was then brought to enjoin the city from interfering or preventing the erection of said building and for damages. The city sought to defend its acts in cancelling the permit on the ground that plaintiff had misrepresented the use to which the building was to be put and the cost of its construction, and that plaintiff had failed to comply with the provisions of a zoning ordinance requiring the written consent of the property owners of the vicinity of the proposed building, to be filed with the city engineer before a permit should be granted.

At the trial of the case November 5th, following, the question of damages was continued, the case proceeded to trial on the question of enjoining the city from interfering with the erection of the building. This trial resulted in a decree in plaintiff's favor permanently enjoining the defendant, its officers and agents from interfering or preventing the plaintiff from erecting said building. The question of damages was heard on February 23rd, 1926, and judgment rendered in favor of plaintiff in the sum of $ 534.55.

The case is brought here on direct appeal. The question as to whether or not the injunction was properly granted is not before us, no appeal from that judgment having been taken. The injunction was granted November 5th. The notice of appeal was served March 1st, following. It recites so far as is necessary here, "* * * will appeal from the order and judgment of the District Court within and for Albany County, Wyoming, made and entered the 23rd day of February, 1926 * * *." "The defendant does not appeal from all of the order and judgment. The portion of said order and judgment appealed from are the findings of the court that the amount of the damages are $ 534.55, and the order and judgment granting and giving the plaintiff the sum of $ 534.55 damages and $ 8.15 costs." It will be observed that the notice of appeal was not served within the time permitted by law in order to raise the question as to whether or not the injunction was proper, the notice of appeal specifically stating that the appeal is taken from the judgment and order of February 23rd. Furthermore, the portion of the judgment appealed from is limited to the question of damages.

We do not think the attorney for defendant intended to appeal from the order granting an injunction. While the point is mentioned in the specifications of error, it is not argued in his brief.

It may, however, not be out of place, in passing, to state that, as a general rule, when a city council, or the proper city officer, in the absence of fraud, grants a permit for the construction of a building, and the party acting in the faith thereof commences the erection of a building, he acquires something more than a mere license, something in the nature of a vested right, and the permit cannot then be revoked by the city. Rehmann v. City of Des Moines, 200 Iowa 286, 204 N.W. 267, 40 A. L. R. 922; Lerch v. City of Duluth, 88 Minn. 295, 92 N.W. 1116; Hinman v. Clarke, 121 A.D. 105, 105 N.Y.S. 725; affirmed in 193 N.Y. 640, 86 N.E. 1125; State ex rel. Grimmer v. City of Spokane, et al., 64 Wash. 388, 116 P. 878, 43 C. J. 349.

The action was originally brought against the city of Laramie the Mayor, the City Engineer, and the Chief of Police. At the trial it was dismissed as to the officers, leaving the city as the sole defendant. No objection was made to this action of the court. So on the issue of damages we have the sole question of the liability of a city for the wrongful revocation of a building permit by its council. It is clear that the city is not liable in damages in such case. The immunity from such liability in wrongfully refusing to grant a building permit or wrongfully revoking same is usually placed on the ground that the officers of the city are acting in a governmental capacity. So far as our investigations have gone we have found no dissenting voice to the proposition that in granting or refusing to grant a...