126 Ky. 244 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
This is an appeal from a judgment of the lower court compelling by mandamus the city of Louisville, through its board of safety and building inspector, to grant appellee permission to erect a frame dwelling upon her lot situated on a street of that city, known as “Longest avenue.” The facts alleged in the petition sufficiently present the grounds upon which appellee based her right to the permit demanded of appellant’s building inspector, and these facts, being confessed by the demurrer to the petition, and not denied by answer, are, upon this appeal, to be accepted as true. The facts are, in brief, as follows: Appellee wished to build a frame dwelling house on her lot, which lies in the outskirts of the city of Louisville, and adjoining that of Henry S. Gray, upon which is situated a brick dwelling house. An ordinance of the city required appellee, before beginning the erection of the house on her lot, to obtain of R, J. Tilford, its building inspector, a permit to build same. When she applied to the inspector for the permit, he refused to grant it upon the sole ground, that Gray, the owner of the adjoining lot containing the brick building, had refused to consent in writing or otherwise to the erection of a frame house on appellee’s lot, as it would be within* 60 feet of his brick house. Appellee had previously asked written permission of Gray to erect the house
The ordinance involved in the case at bar is both unreasonable and discriminatory, for it attempts to confer upon a private citizen «who may be so fortunate as to own a stone or brick house power of the most arbitrary character over the property of his neighbors within a radius of 60 feet of his own house. This power is not allowed to the owner of a frame house, though his house would be in more danger from the erection of a frame house on the adjoining lot of his neighbor than would a brick or stone house. The owner of the stone or brick house is, in respect to the exercise of the power delegated by the ordinance, wholly uncontrolled. The only way the adjoining lot owner can interfere with Ms exercise of the power conferred is to build on his lot a brick or stone house; for in no other way can he avoid the necessity of having to ask the other’s consent. Tliis of itself practically amounts to coercion or duress. ■ As said in the opinion of the learned circuit judge, “the citizen’s right to apply his property to any lawful use is itself property, and is as such as clearly within the constitutional inhibition against assault or spoliation as the property to which it attaches and into which it may be said to enter as an integral part. True, the
For these reasons, we do not hesitate to condemn the ordinance as unconstitutional and void. In our opinion the lower court did not err in overruling the demurrer to the petition, nor in granting the writ of mandamus.
Wherefore, the judgment is affirmed.