103 Mo. App. 480 | Mo. Ct. App. | 1903
— The Reliance Realty Company and the Hill-0’Meara Construction Company are corporations. The former owns a lot on the northeast corner of Olive and Sixth streets in the city of St. Louis, which fronts fifty feet on the north line of Olive street and extends north 114 feet along the east line of Sixth. The plaintiff, James M. Carpenter, owns two lots adjoining the Realty Company’s lot. One of them'fronts'on the
In 1898 Carpenter had a building on his Sixth street lot, three stories high for a distance of thirty feet from the front and thence two stories high the further distance of twenty feet. The foundation walls under the three-story portion of that, building were of stone and extended eight feet below the level of the curb on Sixth street. The foundation under the two-story part extended two and one-half feet below said level and below the surface of the ground. On plaintiff’s east lot, to-wit, the one fronting on the north side of Olive street, he had a building of brick and iron, four stories high for a depth of eighty feet and one story high the further depth of thirty-four feet. The west wall of that building, contiguous to the Realty Company’s lot, was of brick and the foundation for a depth of eleven feet, was of brick and twenty-eight inches thick and for the further depth of one foot was three feet thick and laid in hydraulic cement mortar. Both the buildings are alleged to have been old, but their age is not stated in the evidence. During said year the Reliance Realty Company began to improve its lot, the purpose being to erect, thereon a ten-story office building of the steel construction type, and such an edifice was in fact erected and is; now known as the Carleton Building. In making the improvements, it was necessary to excavate the Realty Company’s lot to the depth of eighteen feet or more in order to put in a basement and a foundation strong enough to uphold the lofty superstructure intended to be erected. As this excavation would penetrate the earth below and immediately adjacent to the foundations of the plaintiff’s two buildings, measures to insure the safety of the foundations were required. With that end in view the Hill-0 ’Meara Construction Company, to whom the con
‘ ‘ The legal depth for excavations to the bottoms of footing shall be nine feet for dwellings'and fifteen feet for business buildings — to be measured from the curb level on the party line. Whenever an excavation shall be carried to a greater depth than the legal depth above given, it shall be the dutjr of the person making or causing such excavation to be made to preserve any contiguous legal wall or walls from injury and sustain, protect and underpin the same at his own cost and expense, so that the said wall or walls shall be and remain practically as safe as before such excavation was commenced. He shall give timely written notice to adjoining property owners of his intention to do so, and adjoining property owners shall permit the occupancy of their ground and buildings so that their walls may be underpinned and sustained. If such excavation shall not be carried to a depth greater than the legal depth above given, the owner or owners of such adjoining or contiguous wall or walls shall preserve their walls from injury and so •sustain, protect and underpin the same at their own cost and expense that said wall or walls shall be and remain as safe as before such excavation was commenced, and said owner or owners of adjoining or contiguous wall or walls shall be permitted to enter upon the premises*487 where such excavation is being made for that purpose, • when necessary.”
On .November 9, Carpenter replied to the notice of the Hill-0’Meara Construction Company, saying that the notice stated the excavation would be made to a depth of fifteen feet along both of his lines; but that he had seen the plans and specifications for the new building and they called for an excavation of eighteen feet; that inasmuch.as the notice did not explicitly declare the excavation would be limited to fifteen feet, he asked for information as to the full depth intended to be exea-, vated. He also called the attention of the Construction Company to the aforesaid municipal ordinance and said if the Construction Company would inform him that it did not intend to dig deeper than fifteen feet, he would proceed, without further delay, to protect his walls; otherwise he would expect the Construction Company to protect them.' No reply was made to this letter, and on November 17, Carpenter filed a petition in the circuit court of the city of St. Louis against the Reliance Realty Company and its officers and the Hill-0 ’Meara Construction Company and its officers, in which he averred that the defendants were about to excavate to a depth of eighteen feet and asked that they be restrained from proceeding with the work until they had, at their own cost and expense, protected and underpinned his walls so as to preserve them from injury. The petition stated that plaintiff’s buildings were occupied by tenants; that the proposed excavation endangered the buildings; that the defendants, in disregard of their duty, had refused to protect his walls at their own cost and expense, and if they were allowed to proceed without providing adequate safeguards, there was great danger to the lives and limbs of plaintiff’s tenants and of irreparable damage to his buildings. A bond was given and a temporary restraining order granted. The order enjoined the defendants, their agents and servants from making any further excavation on the Reliance Realty Company’s
Answers were filed by the Hill-0’Meara Construction Company and its officers, admitting plaintiff’s ownership of the two lots; that the defendant corporation, when this suit was instituted, was in possession of the Realty Company’s lot, and denying the other allegations of the petition. The Reliance Realty Company answered that on the sixth day of October, 1898, it had let the contract for the erection of a ten-story building to the PIill-0 ’Meara Construction Company and that the Construction Company had entered the premises as an independent contractor, with the sole and absolute control thereof; that the Construction Company was not the agent or servant of the Realty Company, but had agreed with the latter company to thoroughly protect all work liable to be injured during the erection of the contemplated building, and to take great care to protect the adjoining property and repair any damage done to the same; that it had further agreed to do the requisite shoring to prevent the caving in of the adjoining buildings. Said answer further averred that the refusal of the Hill-0’Meara Construction Company to protect and underpin the plaintiff’s walls was without the Realty Company’s connivance or consent and that the Realty Company had made demand of the Construction Company to shore plaintiff’s walls. The officers of the Realty Company filed a general denial.
The evidence showed the facts' above stated and that after the temporary restraining order was granted, the Hill-0’Meara Construction Company underpinned the plaintiff’s walls at an expense of some twenty-six hundred dollars. There was evidence that the excavation for the new building would extend in places, to a
The contract between the Realty Company and the Hill-0 ’Meara Construction Company contained .these clauses:
“The contractor shall thoroughly protect all work liable to be injured during the construction of the building and shall take great care to'protect adjoining prop.erty, and shall repair any damage done by'him to same. ”
“He shall take proper care of the ends of sewers in the manner directed by the. architect and shall derail requisite shoring and bracing to prevent caving in of '■streets and adjoining buildings.” t ’
On the final hearing in the circuit court the temporary restraining order was made perpetual and after their motion for new trial had. been overruled, the defendants appealed to this court.
In Dorrity v. Rapp, supra, the New York Court of Appeals declared that at common law an owner of land contiguous to a building is not bound to safeguard or strengthen the building when he excavates on his lot, or do more than excavate carefully; but that the legislature of New York had interposed to regulate the right to
A state legislature has inherent power to change the law in this regard, as in all others,’ when the change does not infringe some constitutional rule of property; but a city has no power to do so unless the Legislature delegates it. The attempt to shift the burden of protecting contiguous walls from owners to excavators in the city of St. Louis, when an excavation is to go deeper than fifteen feet, was made by a municipal ordinance, not by a State statute; and the ordinance is assailed by the defendants as in excess of the city’s legislative power. It is defended by the plaintiff as a legitimate exercise of the city’s police power and a performance of its charter right and duty to provide for the safe construction of buildings inside the city limits.
What is called the police power appertains to the sovereignty of a State, but is exercised by that sovereignty through the agency of municipalities as -Well, as through direct statutory enactments operative throughout the commonwealth. That is to say, the power to¡ enact regulations for the welfare, health and good morals of a community within the limits of cities and towns, is largely delegated by the State to its municipal governments. But in every case of municipal legislation under the guise of the police power, -express or implied, authority for the ordinance must be found in the charter of the city or in some other statute. A city can only exercise' such powers as are expressly granted to' it by the State, or fairly implied from, or incident to'powers ex
In St. Louis v. Hill, 116 Mo. 527, it was held that a statute relating to the city óf St. Louis and providing-that every house erected on Forest Park Boulevard should be set back forty feet from the edge of the street,, was not a proper exercise of the police power of the State-but rather a confiscation of private property for public' use without compensation; and, therefore, was unconstitutional and void. Interference with a man’s right to-improve his land as he chooses, and other governmental interferences against common right, are somewhat jealously watched by the courts, and they scan pretty closely the language of municipal charters to see if a particular-interference was clearly authorized. Succession of Irwin, 33 La. Ann. 63; State v. Schuchardt, 42 Id. 49.
The charter authority to provide for the safe construction of buildings, we think, has reference to the material to be used, the thickness of the walls, and similar matters which concern the people at large and tend tu
Not only have we found no decision holding such an ordinance valid as an exercise of the city’s police power, but it far transcends in its revolutionary effect on the law, any municipal act which, to our knowledge, has been upheld as valid under a charter empowering a city to regulate the construction of buildings.
The purpose of the Legislature of this State to keep the rules prescribed by the mayor and the municipal as
In Grand Ave. R. R. v. Lindell R. R., 148 Mo. 637, the Supreme Court said:
‘ ‘ The ordinances of a city, adopted in pursuance of its charter, granted by the State, have the force and effect of laws within said city, and are binding upon all persons who come within the scope of their operation, so long as they are not in conflict with the Constitution, and are in harmony with the general laws and policy of the State.”
That ordinances are invalid if inconsistent with the laws of the State was declared in St. Louis v. Packing Co., 141 Mo. 375; Paris v. Graham, 33 Mo. 94; In re Dunn, 9 Mo. App. 255; Kansas City v. Hallett, 59 Mo. App. 160, and in many other decisions. The general principle is recognized and stated in Judge Cooley's authoritative work on Constitutional Limitations, and the numerous cases cited in support of the text. (7 Ed., p. 279.) Of course, the Legislature may, by .charter or other statute, confer on a city the right to enact laws at variance with general legislation and State policy, but not at variance with the Constitution. But the authority to provide so radical an alteration in the law ought to be clear. The grant of power to regulate the 'construction and'repair of buildings signifies no'intention on the part of the Legislature of Missouri to authorize the municipal assembly of St. Louis to change the obligations and duties of adjoining proprietors and ought not to be construed as validating such an attempt.'
In Slaughter v. O'Berry, 48 L. R. A. .(N. C.) 442,
“Where a city has the power to erect a public improvement, and to control, manage and protect the same, the line of demarcation is so small and so delicately drawn between such power and the rights of the individual citizens of the corporation, that it is difficult to run and mark it so as to give the corporation its proper powers without infringing upon individual rights and property rights. But, as delicate as this duty is, it seems to us that in this case'the line of demarcation is plainly apparent. But, if it was in doubt, it would have to be resolved against the defendants, and in favor of the plaintiff’s individual rights. 1 Dill., Mun. Corp., par. 89; State v. Webber, 107 N. C. 962, 12 S. E, 598; Edgerton v. Goldsboro Water Co. (N. C.), 35 S. E. 243.
“We are therefore of the opinion that the city had the right to require that this connection should be made by its licensed officer; that materials furnished should be proper for such work, and subject to the inspection and approval of the city inspector; and that the work of putting them in should be done under the supervision of the city inspector. But we are also of the- opinion that the city had no right to compel the plaintiff to buy
The ordinance we are considering was examined heretofore by this court in Eads v. Gains, 58 Mo. App. 586. But as the excavation in that case did not extend below the depth prescribed as one to which an excavator may go without protecting an adjoining wall, the part of the act with which we are concerned was not involved in the decision. The last part of the ordinance, which says owners must themselves protect their buildings against damage from excavations not deeper than fifteen feet, was held valid as declaratory of the common law; but the court was careful to limit its decision as to the validity of the ordinance to that part.
Plaintiff’s counsel has cited us to certain decisions of the Supreme Court of this State, based on ordinances of St. Louis and other cities, which prescribe a maximum speed for railway trains and street cars, and the care operatives of street cars must take to prevent injury to persons and property, and holding that an action lies for damages in favor of a person who is injured on account of a violation of the prescribed rules. Jackson v. Railroad, 157 Mo. 621; Hutchinson v. Railroad, 161 Mo. 246. There has been much wavering in the decisions on that proposition and the following cases hold that such ondinances afford no civil remedy for compensation: Fath v. Railroad, 105 Mo. 537; Senn v. Railroad, 108 Mo. 142; Moran v. Car Co., 134 Mo. 641; Byington v. Railroad, 147 Mo. 673; Badgley v. St. Louis, 149 Mo. 122; Anderson v. Railroad, 161 Mo. 411. Whatever the law of the subject may be the decisions holding that if the regulation is not observed, a civil liability accrues to a person injured in consequence of its non-observance, are not in point in this case. Such ordinances are enacted under charter provisions whose obvious purpose is to enable a city to make rules to protect life and property from the dangers
The main proposition in the present case, as we conceive it, is not whether a liability would have accrued in favor of the plaintiff and against the defendants if the former had suffered injury by the latter disobeying the ordinance in question; but whether the city had power to pass the ordinance. If power to pass it was lacking, it is a nullity and affords the plaintiff no standing for relief. We are constrained to the opinion that the portion we are dealing with was not within the legislative capacity of the city. The doctrine which to our minds is the one that ought to control the disposition,of this cause, was once expressed by a learned jurist in the statement that a municipal corporation may not restrain or prohibit a person from exercising his rights under the law of the land, unless the power to restrain or prohibit is expressly given by the charter, or necessarily results from what is expressly given. Cary v. Washington, Fed. Cases 2,404. Authority to abate nuisances is held not to empower a municipality to declare something a nuisance which is not one at common law, or by statute; that is, to alter the law in regard to what is a nuisance. Allison v. City of Richmond, 51 Mo. App. 133; St. Louis v. Packing Co., 141 Mo. 375. Those decisions rest on a principle which invalidates the ordinance in question in so far as it attempts to alter the rule of law prevalent elsewhere in the State. The police powers of a city ought to b.e construed with reasonable liberality; but before an ordinance is enforced which will chang'e a fundamental theory of the law so that the change will be sensibly felt in the law’s practical effect, its validity should fairly appear from some statute delegating the power to enact it; not be implied simply because the result would be wholesome. Knapp v. Kansas City, supra.
A case arose in the District of Columbia (Fowler v. Saks, 18 D. C. 570) in which an ordinance somewhat like the one under review, but relating to a party wall, was held valid on the ground that one owner of a party wall has no right to tear it down, and if he does, is liable for damages. But the building commissioners of the District of Columbia had provided, pursuant to an act of Congress, that one owner of a party wall might demolish it on condition of rebuilding it entirely at his own expense. The condition was upheld; because, as the commissioners had power under the act to change the law, they had power to prescribe the conditions. In that ease it was said one can not take the benefit of a building ordinance and repudiate its burdens. But the remark meant, as appears from the context, that one owner of a party wall could not take it down by virtue of the building regulations and then repudiate the conditions which those regulations attached to the right to take it down. There something had been done by the party to be estopped which would entail loss to the other party unless he was estopped. He had torn down the wall, to his co-owner’s detriment, and sought to evade
Moreover, the plaintiff did not sue on the contract nor refer to it in his petition. At the trial the Eealty Company not the Construction Company, introduced the contract in evidence; but plaintiff did not then amend his petition in an endeavor to take advantage of the contract. Hence, a decision in his favor on this point, as on the preceeding one, would be outside the issues. Walker v. Owen, supra; Hollman v. Lange, 143 Mo. 100; Evans v. Kunze, 128 Mo. 670.
We have thus gone over the several propositions raised and discussed by counsel and have reached the decision that the plaintiff was not entitled to'restrain the defendants from proceeding with the erection of the building until they had, at their own expense, sustained, protected and underpinned plaintiff’s walls, as the writ of injunction required them to do.
The judgment is, therefore, reversed and the cause remanded, with the direction that the injunction be dissolved.