91 W. Va. 318 | W. Va. | 1922
Relator is the owner of a lot of land lying within the corporate limits of the City of Charleston, between Columbia Boulevard and the low-water mark on the Kanawha river and extending from a point near the intersection of Pennsylvania Avenue with Columbia Boulevard to a point near Berkeley Street. Columbia Boulevard is a paved street on which the lot of relator abuts. The paving assessment against his lot in favor of the city, and which is now a subsisting lien thereon amounts to $5,736.93. The Boulevard runs near the top of the river bank,, but there is room for the construction of a building on the top of the bank facing the Boulevard by extending the rear portion of the building over the. break of the bank and supporting it by pillars. Relator desires to improve his lot and render it productive by the erection of a two story frame dwelling as indicated, but his application for a building permit therefor has been refused by the proper municipal authorities, and he seeks by this writ to compel the issuance to him óf a permit to erect the dwelling house at the point designated in accordance with the plans and specifications filed with his application for a permit. The petition avers that relator has tendered the proper fees and has strictly complied with all rules and regulations of the city relating to applications for building permits, and that the only reason the city and its council have for withholding the permit is that they desire that relator’s land should remain unimproved, open, unoccupied and free from dwelling houses thereon, which, it is averred, amounts to taking relator’s land without just compensation, and without due process of law.
The return admitted as true the allegations of the petition, except the ninth paragraph thereof which is to the effect that
Municipal ordinances governing the erection of buildings are justified under the police power of the state by which the legislature may directly or indirectly provide for the public health, morals, safety, convenience or prosperity. There is no suggestion that relator’s proposed dwelling would be dangerous to the safety, health or convenience of the public. All of the building regulations have been complied with. No reason for refusal of the permit is given, except that above suggested namely, concurrent federal control. From the blue print filed with the return which shows the location of the building on the bank with its foundation higher than the street, it is apparent that the city has jurisdiction to grant or refuse the permit. ' But in the absence of some special right or power conferred upon it by the Legislature, or included in its charter powers so conferred, and applicable to real property without reference to its location, a municipal corporation bordering on a navigable river or including a portion thereof within its limits, cannot interfere with the riparian rights of an owner of land adjoining such river, which are subject only to the rights of the state and the right of navigation regulated by the federal government, nor prevent the exercise thereof. No good reason being interposed by the return for the refusal of the permit, we will grant the prayer of the petition and order the peremptory writ of mandamus to issue.
Writ awarded.