Wood v. Richmond

• Decision Date: 16 June 1927
• Citation: 148 Va. 400
• Court: Virginia Supreme Court
• Parties: BEN WOOD v. CITY OF RICHMOND.

Page 400

148 Va. 400

BEN WOOD v. CITY OF RICHMOND.

Supreme Court of Virginia, Wytheville.

June 16, 1927.

1. MUNICIPAL CORPORATIONS — Zoning — Validity of Reasonable Ordinance. — Where reasonable, zoning ordinances have been universally sustained.

2. ORDINANCES — Reasonableness of Ordinance — Interference by Courts — Construction in Favor of Validity of Ordinance. — The rule is generally recognized that municipal corporations are prima facie sole judges respecting the necessity and reasonableness of their ordinances. Every intendment is made in favor of the lawfulness of the exercise of municipal power making regulations to promote the public health and safety, and it is not the province of the courts, except in clear cases, to interfere with the exercise of the powers vested in municipalities for the promotion of the public safety.

3. ORDINANCES — Promotion of General Welfare of Inhabitants of Cities — Denial of Right of Injunction to Courts and Judges — Violation of Authority and Irreparable Damage. — Under statutes denying courts and judges the power to award an injunction to stay any proceeding under an ordinance looking to the attainment of the safety, health, peace, good order and morals of the community, to justify the interposition of a court of equity, there must be a concurrence of the two elements of violated authority by the municipality and irreparable damage to the complainant.

4. MUNICIPAL CORPORATIONS — Filling Stations — Removal of Filling Station Driveway by City — Charter of the City of Richmond — Case at Bar. — Acts of 1924, chapter 78, amending and reenacting section 19 of the charter of the city of Richmond and section 19g of the charter of the city of Richmond, confer authority upon the city to order the removal of a filling station driveway as being in violation of the zoning ordinance of the city, notwithstanding that a permit had been issued by the city for the construction of the driveway, where it appeared that the permit was issued without due consideration of the vehicular and pedestrian traffic on the street at and near the position of the driveway and that the continued use of the driveway would constitute a serious menace to the safety of the traveling public.

5. STREETS AND HIGHWAYS — Rights of Abutters — Rights Subordinate to Right of Municipality to Control the use of its Streets. — An abutter has an easement in the public road which amounts to a property right, but the exercise of this right is subordinate to the right of the municipality, derived by legislative authority, to so control the use of the streets as to promote the safety, comfort health and general welfare of the public.

6. INJUNCTION — Motion to Dissolve Temporary Injunction — Affidavits — Case at Bar. — In support of a motion to dissolve a temporary injunction against a city enjoining it from removing a filling station driveway, an affidavit of the director of public works showing that the permit to defendant to construct the driveway was issued without due consideration of the great extent of the traffic was properly admitted for the consideration of the court.

7. INJUNCTION — Application — Motion to Dissolve — Hearing on Affidavit Only. — It is sometimes necessary, from force of circumstances, for preliminary applications for injunctions and for motions to dissolve injunctions, which are made before the final hearing, to be heard upon affidavits only.

8. MUNICIPAL CORPORATIONS — Filling Stations — Order for Removal of Filling Station Driveway — Zoning Ordinance — Conflict with State and Federal Constitutions. — Under authority conferred by its charter, section 19 as reenacted by Acts of 1924, chapter 78, and section 19g, the city of Richmond ordered the removal of a filling station driveway, permit for which had been improvidently granted.

Held: That the regulation of the city was not an unreasonable exercise of the police power and therefore was not in contravention of either the State or Federal Constitution.

Appeal from a decree of the Circuit Court of the city of Richmond. Decree for defendant. Complainant appeals.

The opinion states the case.

David Meade White and T. Gray Haddon, for the appellant.

James E. Cannon and L. F. Cary, for the appellee.

CAMPBELL, J., delivered the opinion of the court.

The bill in this cause sets forth that the appellant is the owner of a lot in the city of Richmond, situated at the southeast corner of Thirty-fourth and Leigh streets, with a frontage of 200 feet on the south line of Leigh street, and seventy-five feet on the east line of Thirty-fourth street; that upon this lot, at great expense, appellant has erected a gasoline filling station; that this filling station fronts on Leigh street; that a permit was issued by the director of public works, on June 22, 1925, authorizing appellant to construct two driveways into his lot, one across the sidewalk on Thirty-fourth street and one driveway across the sidewalk on Leigh street; that, pursuant to such authorization, he constructed said driveways; that, on August 13, 1925, he was directed by the assistant director of public works to remove the Thirty-fourth street driveway, because this entrance was in violation of the zoning ordinance of the city; and that, upon failure to remove the driveway, the same would be removed by the city.

The averments of the bill are, that the driveway across the sidewalk on Thirty-fourth street is not in violation of the zoning ordinance; that the zoning ordinance contravenes sections 1, 11 and 58 of the Constitution of Virginia, and Article 14, section 1, of the Constitution of the United States, and, therefore, is null and void.

The prayer of the bill is that the city of Richmond, its agents and servants, be enjoined and restrained from tearing up and destroying the Thirty-fourth street entrance to the property of the complainant. In accordance with the prayer of the bill, the Honorable William A. Moncure, judge of the Chancery Court of the city of Richmond, upon an ex parte hearing on the 16th day of December, 1925, awarded an injunction restraining appellee from tearing up the Thirty-fourth street driveway.

Appellee filed a written demurrer to the bill, assigning ten grounds of demurrer, and, in addition, notified appellant that, on the 17th day of December, 1925, it would move the Circuit Court of the city of Richmond to dissolve the injunction. This motion to dissolve was supported by the affidavit of the appellee's director of public works, in which the said director stated that the permit to appellant to install a driveway across Thirty-fourth street was issued without due consideration of the extent of vehicular and pedestrian traffic on Thirty-fourth street at and near the position of said driveway; that such traffic is of a relatively large volume; and that, in his judgment, the continued use of said driveway would constitute a serious menace to the safety of the traveling public. On the 6th day of January, 1926, the Circuit Court of the city of Richmond, hearing the cause upon the bill, the demurrer, the joinder therein, the motion to dissolve, and the several affidavits filed in support of and in opposition to said motion, sustained the demurrer and the motion to dissolve, dissolved the injunction and dismissed the bill. This action of the lower court is assigned as error.

Appellant does not deny the power of the city in the exercise of its police power to enact a just and reasonable ordinance regulating and controlling, generally, traffic over its streets. His main contention is that, as an abutter, he has the right of access to his lot from Thirty-fourth street, as well as from Leigh street, and that such right is absolute and inherent.

Zoning and other regulatory ordinances have, in recent years, become a prolific source of litigation. Where reasonable, such ordinances have been universally sustained. Village of Euclid Amber Realty Co. (October term, 1926), 47 S.Ct. 114, 71 L.Ed. 175; Gorieb Fox, ...