148 N.W. 610 | N.D. | 1914
The object of this suit is to obtain a decree adjudging that the building ordinance of the city of Fargo, known as Chapter 13 of the Consolidated Ordinances, as amended in § 9 of title 2, chap. 2, and §§ 1 and 2 thereof, by an ordinance approved June 16, 1910, is null and void; that certain proceedings instituted thereunder, as relating to a building owned by the plaintiff and appellant in July, 1913, situated on lots 1 and 2 of S. G. Robert’s addition to the city of Fargo according to plat No. 2, he adjudged illegal and void; and that plaintiff have a permanent injunction restraining the defendants, city of Fargo, the members of its commission, and its city engineer, from interfering in any wise with the rights of the plaintiff
The defendant’s answer alleges that the defendant Anders was the city engineer and building inspector; that, as such, and under the powers conferred by the said chapter 13, he notified plaintiff in writing of his action in stopping repairs unlawfully being made on the building described, that the defendants had not at any time under consideration the tearing down of said building, but had acted solely to protect life and property, and especially of those using the sidewalks along said building, from injury, in case the building should collapse, by building a railing on the outside of - said sidewalk, in front of and on the north side of said- building, leaving openings therein to accommodate the occupants and pedestrians; that this was done, believing that there was imminent danger that a collapse would occur in case the four walls should be pulled off the foundation on the north side, which they were liable to be, and in which case it was believed that the north and east walls would fall outward on the sidewalk and endanger the lives of persons passing; that said block is an old frame building, covered with brick veneer, located within the fire limits, and during all times mentioned was damaged by the elements and decay more than 50 per cent of its value above its foundation; that no building permit was or had been applied for to make repairs thereon as required by the ordinance. It is then alleged that she had submitted the matter to arbitration in accordance with the terms of the ordinance, and deposited the sum of $30 as required by said ordinance, as fee; that three appraisers were chosen, one by the city of Fargo; that the plaintiff acquiesced in the appointment of one Larson to represent her, and that the two appointed a third; that they duly qualified and made a report that the building was damaged to an extent exceeding 50 per cent of its original cost value; that, at her request, a more detailed report was made, and that thereafter she appeared in person and by attorney before the board of city commissioners, and was heard; that, having acquiesced in the appointment of the appraisers, she was estopped from denying the amount or percentage of damages found by them.
Keference was made to § 51 of the ordinance referred to, and the dismissal of plaintiff’s complaint was demanded, and judgment for
A trial was had, findings of fact and conclusions of law were made, and judgment entered. It was found that the Ely block was located within the fire limits, was about 28 feet wide and 140 feet long, two stories in height, built about thirty years ago, veneered with brick, and had been damaged by the elements and decay to exceed 50 per cent of its value above its foundation, that it was liable to collapse, and was a constant and imminent menace and danger to the lives of pedestrians passing on the sidewalks in front, and particularly on the north side thereof;' that the city had caused a fence to be built along the sidewalk, shutting off travel, but had never attempted to tear down, destroy, or remove said building; that the acts of defendants were in conformity with the building ordinance and in consonance with the law of the state, constitutional and valid. Judgment was • for the dismissal of plaintiff's complaint. This appeal is to secure a trial de novo.
The building known as the Ely block, which is the subject of this controversy, faces east on Broadway in Eargo. The north side faces an avenue, and there is a sidewalk on the east end and north side. It is two stories high, a frame structure veneered with brick, the first floor used for mercantile purposes and the second floor for rooming. It was built more than thirty years ago, and long before the enactment of any ordinance prescribing fire limits or restricting the erection of wooden buildings within the city of Eargo.
The statute under which the ordinance involved in this case is claimed to be authorized is found in § 2678, Bev. Codes 1905, prescribing the powers of city councils. Paragraph 46 of that section empowers the city council to prescribe the thickness, strength, and manner of constructing stone, brick, and other buildings, and to require the construction of fire escapes therein, and to provide for the inspection of all buildings. Paragraph 47 authorizes the council to “prescribe the limits within which wooden buildings shall not be erected or placed, or repaired without permission, and to direct that all and any buildings within said limits, which shall be known as the fire limits, when the same shall have been damaged by fire, decay, or otherwise, to the extent of 50 per cent of the value, shall be torn down or removed, and to pre
It provides that before the erection, construction, or material alteration or repair of any building in the city, there shall be filed with the inspector of buildings a statement in writing giving the intended location, dimensions, materials, manner of construction, and estimated cost, and, if within fire limits, in addition to the above statement, there must be submitted for examination full specifications and plans of the proposed building or alterations, and for the issuance of a permit, and it is made unlawful for anyone to proceed to construct or materially alter any building within the city without such permit. It also provides that any alteration in or addition to any building already erected, except necessary repairs not affecting the construction of the external or party walls, roofs, chimneys, or sidewalks, shall to that extent be subject to the regulations of the ordinance.
The particular feature of the ordinance in question in the case at bar is § 57, which provides that “it shall be unlawful to repair any frame building within the fire limits of the city, when such building shall have been damaged by the elements or decay to the extent of 50 per cent of such building exclusive of the foundation thereof;” that “the decision of the inspector of buildings shall be conclusive as to the amount of damage to any building caused by the elements or decay, unless within twenty-four hours after his decision the owner files a petition asking for the appointment of arbitrators to determine the question of damages.” It is provided that the arbitrators shall consist of three disinterested, competent persons, one to be chosen by the inspector, one by the owner,
In the case at bar, repairs were started on the interior and top floor of the building. The nature and extent of such repairs is not shown. One Larson entered complaint to the building inspector that repairs were being made without a permit, and that the building was in an unsafe condition, whereupon the inspector ordered all work discontinued, and arbitration was had. The arbitrators were named Hancock, Jenson, and the same Larson who made the complaint. They reported that the building had deteriorated more than 50 per cent in value.
The first specification on which a reversal is claimed is that the evidence was wholly insufficient to show that the building had been damaged to the extent of 50 per cent of its value, but showed the contrary. On this question a review of the evidence discloses that the owner testified that the building, exclusive of the land, was worth $12,000. She was not interrogated as to its value above the foundation. One O’Shea, an architect of Fargo, testified that he had been acquainted with the building for nearly twenty years; that he had made a personal inspection for the purpose of determining how necessary repairs would compare with the value of the building; that it was worth from $7,000 to $10,000 as it stood; that there was not a deterioration of 50 per cent of its value; that there was nothing dangerous about the building except in two places, which were on the south side and away from any street; that the cost of making the building structurally safe would be $1,037; that it was out of plumb, leaning south; that it had been in that con
Frank L. Anders, the building inspector, testified on cross-examination by the plaintiff, that he figured that the building had deteriorated more than 50 per cent of its value. He did not claim to be an expert upon the subject, but relied largely upon the method used by insurance companies in determining the value of buildings for insurance purposes, starting on the supposition that the life of a building is fifty year's; he testified that probably it would cost $12,000 to $14,000 to build the building new above the ground; that the value of the building as it stood was two fifths of its original value, based upon a useful life of fifty years. Testifying on behalf of the defendants, Anders said that no plans and specifications for repairs were presented to him until after proceedings had been had; that his sole purpose in prohibiting repairs was to protect the lives of the people who were passing along on the sidewalk, because he was satisfied that it was dangerous to pedestrians; that he was largely guided in his estimates by scientific figures adopted and used by engineers; that he was also guided by his personal obser
George Hancock, a witness for the city and an architect for many years, testified that he went into the building the day that he testified, but that he did not arrive at any conclusion as to the deterioration of the building above the foundation; that it was stupid and silly to talle about the deterioration above the foundation. In answer to a question as to the value of the property, he testified that he made an examination three or four months previously, and then estimated that there was a scrap value of possibly <$500. Motion was made to strike out this evidence as incompetent, immaterial, and irrelevant, no foundation laid, and as an improper basis upon which to compute the value under the terms of the ordinance. The trial court under the statute was required to receive all the evidence offered, hence did not rule on this question. It is evident that thé scrap value had little, if any, bearing on the issues. He was asked what, in view of the whole structure as now located, inside ahd out, the percentage of deterioration above the foundation was. Objection was made to this on the ground that he had previously testified that the entire difficulty with the building was in the foundation, and that his information was without any basis on which to predicate it. This objection was well taken. His answer was that the building was damaged over 15 per cent of its original value; that the second story was damaged by reason of the foundation’s giving way and getting out of plumb; that it could not be repaired and made plumb without taking the building down. Motion was made to strike out his answer as incompetent and as without proper foundation. It was clearly incompetent. He then testified that he would be willing to take a contract to build a similar building new for $10,500.
J. H. Bowers testified for plaintiff that he had been engaged in the city as a contractor for about thirty-three years; that he was familiar with the Ely block and saw it built; that he had seen the building every day; that it was not damaged to the extent of 50 per cent; that he
Thomas Powers testified that he had been in business as a builder about thirty-two years and as a contractor about fourteen years; that he was familiar with the Ely block from the outside; that he did not testify that he had inspected it, but that he had seen it; that the veneering was dangerous, all ready to fall in some places; that the salvage would be worth probably $500; that he was in the upstairs once and in the downstairs twice; that the building was much out of plumb; that he would not be surprised to see most any part of the veneering fall off any time; that he thought the building would cost a little less than $10,000 new.
It is evident that superficially the evidence is in conflict as to the percentage of deterioration of the building above the foundation. Mr. Hancock practically refused to testify as to what the percentage of deterioration was above the foundation, as he said the foundation was the basis of the building and of the deterioration. O’Shea was the only person testifying who had made anything which approached a careful examination and estimate of the building, aside-from the city engineer. The estimate of the latter was based largely upon the method pursued by insurance companies in fixing the amount of insurance a building should carry. It is, however, a subject of general knowledge that insurance companies, in making such estimates, allow a considerable margin, and we are therefore of the opinion that, standing alone, that does not form a basis for determining the deterioration sufficiently accurate to form a proper foundation on which to adjudicate that a building shall be torn down, especially when the margin on such basis is only about 5 per cent according to the witness. This structure was erected in conformity with the law as it then stood. The fire limits were established many years afterward. The owner had acquired a vested property right, of which she could not be deprived withorrt some lawful reason. Buffalo v. Chadeayne, 134 N. Y. 163, 31 N. E. 443; Allison v. Richmond, 51 Mo. App. 133. It must be clear that the safety of the public, either by protection from fire or from injury by
Summing it all up, we think the evidence largely preponderates in favor of the plaintiff, to the effect that the deterioration above the foundation was less than 50 per cent. We say this by reason of the detailed estimate made by the architect, O’Shea, who was the only witness who had given any considerable time or attention to detailed estimates, and his specific testimony on the subject must outweigh the at least superficial estimates of others. It must be remembered also that a very different rule applies to buildings erected before the enactment of the ordinance fixing the fire limits, from that applicable to those erected subsequent to the passage of such ordinance.
Statutory provisions giving municipal corporations power to prescribe fire limits and direct the removal of buildings therein, which may be damaged to a certain extent, should receive a strict construction in favor of the owners of such buildings. Louisville v. Webster, 108 Ill. 414; McEwan v. Gilker, 38 Ind. 235; Hooper v. Emery, 14 Me. 375; Robb v. Indianapolis, 38 Ind. 51; Frank v. Atlanta, 72 Ga. 428; Wood, Nuisances, § 738. When the law gives city officials the power to remove a building erected within the fire limits in violation of the statute or ordinance, the power to compel the removal of the building grows solely from the fact that its erection was in violation of the ordinance, and not because it is a nuisance; and the power to abate nuisances does not warrant destruction of valuable property, which was lawfully erected, or anything which was erected by lawful authority; and the power to do so, when given by the legislature, is held to be inoperative and void, unless the thing is in fact a nuisance, or was created or erected after the passage of the ordinance, and in defiance of it. This is the distinction between the rights of the city regarding buildings erected before the fire limits were established and those subsequently built. Wood, Nuisances, 823; First Nat. Bank v. Sarlls, 129
The proper test as a basis for the action of the authorities in protecting pedestrians from falling walls or similar dangers consists not in the percentage of deterioration, but rather whether the structure can be made safe, and whether the owner will make it safe. So long as it is in an unsafe condition, and of this the officials must in the first instance be the judges, endangering the lives of pedestrians, the city may act in such reasonable manner as shall protect the public from injury.
The constitutionality of this 50 per cent test ordinance is questioned, but we are satisfied that, for the purpose for which it was intended, it is a valid enactment. The authorities indicate that there must be some method of determining whether changes made in an old structure are sufficient to constitute a rebuilding or the erection of a new structure, and such provisions are based on the supposition that there is a point somewhere between a perfect or safe building and one which cannot be made safe as to fire, etc., without complete demolition, and a rebuilding. Both the legislature and the city council have fixed that point at 50 per cent deterioration above the foundation, evidently taking the view that, where it has deteriorated more than half in value, that is, has so deteriorated that, on a reconstruction, the building will be more new than old, it is the erection of a new building, rather than the repairing of an old one (First Nat. Bank v. Sarlls, supra), but an arbitrary prohibition is invalid. We cannot pronounce this an unreasonable test.
But the officials of the city of Fargo protest that they were not proceeding with a view to protecting other property from danger from fire, but solely with a view of protecting the lives of pedestrians, especially those using the sidewalk on the north side of this building. With this end in view, they erected a fence on the outside of the sidewalk to warn pedestrians of the danger, and to turn them into the street. Under ¶ 57 of the section referred to, defining the powers of city councils, they are
The same reasons, however, do not apply to their order discontinuing repairs. If the repairs were to affect the construction of the external or party walls, roofs, chimneys, or stairways, they were subject to the provisions of the ordinance relating to permits and the furnishing of plans and specifications. ■ We are unable to determine from the record the nature of the repairs, hence we cannot say whether they were subject to the regulations of the ordinance or not. We refer to the provisions of § 3 of the building ordinance, one paragraph of which reads: ■“Any alteration or addition to any building already erected, or hereafter to be erected, except necessary repairs not affecting the construction of the external or party walls, roofs, chimneys, or stairways, shall to the extent of such work be subject to the regulations of this ordinance.” What we have said renders it unnecessary to determine several questions which are raised in appellant’s brief. However, we shall refer to some which may, to a limited extent, be involved.
The third proposition is that the ordinance is void, because it requires
We are not called upon to pass upon all the provisions of the ordinance. They are very numerous, and few of them have any bearing-on the questions before the court. It is argued that it is void because there is no grant of power in the municipal charter as a basis for the* ordinance. We only need refer to ¶ 47 of § 2678, supra, to find the* power granted by the legislature to the city to prescribe fire limits and regulations as to the extent of repairs which may be made within such limits, and authority for fixing the limit at 50 per cent of the value, and for issuing building permits and the appointment of building inspectors. Inasmuch as counsel does not point out the specific lack of power which he claims, we need not specify more definitely.
It is said that it is already condemned in the decision of this court in Mayville v. Rosing, 19 N. D. 98, 26 L.R.A.(N.S.) 120, 123 N. W. 393. We do not so construe it. Both the ordinance and question involved in that action were very different from those here attacked.
It is next argued that the council or commission of the city is by. this, ordinance vested with judicial power. We do not construe it as. authorizing the exercise of judicial power in excess of that permitted in the case of many administrative or executive officers. The law specifies; the facts which, when found to exist, are to control the action of the officials. It leaves very little room for the exercise of judgment or discretion on their part when the facts are once found. This does not constitute the exercise of judicial power in the sense that it is vested by the
The ordinance requires impartial arbitrators; these plaintiff did not have, and she was apparently ignorant of the fact that Larson, who in some manner not disclosed became an arbitrator, entered the complaint ■against her.
In view of the insufficiency of the evidence as to the nature of the repairs being made, we cannot say that the city was not justified in' ordering them discontinued; and the evidence being adequate to show •danger to pedestrians, the judgment dismissing appellant’s action is affirmed.