Allison v. City of Richmond

51 Mo. App. 133, 1892 Mo. App. LEXIS 402

• Court: Missouri Court of Appeals
• Decided: November 14, 1892
• Status: Published

Opinion

Ellison, J.

Plaintiff’s intestate was the owner of a frame building in the city of Richmond, Missouri. The building was old, and there was stored or kept therein a lot of “plunder,” as designated by the witnesses, consisting of a variety of articles such as coal, kindling wood, .old papers, shavings, boxes, etc. This building was declared to be a public nuisance by the defendant city, for the reason that it “was in a dangerous situation and annoying to the public,” and the city council ordered tne marshal to tear it down and haul it away. The marshal did as ordered, and this suit is for damages for the alleged trespass. Plaintiff recovered in the trial court.

There is nothing • contained in the record to show that the building was within the fire limits, or, indeed, that the defendant city had established a fire limit, or, if so, that the building had been erected since its establishment, and in violation of the ordinance in that regard. The city seems to have condemned the building itself. The building was assuredly not a nuisance, and to legalize its arbitrary destruction would be to sanction the violation of the right of property. The defendant’s officers tore down the building and took away the material. If the use to which the building was being put was so hazardous as to be a nuisance, this would only authorize the suppression of the use and not the destruction of the building. 1 Dillon on Municipal Corporations, sec. 378.

Cities of the fourth class, to which defendant belongs, have authority, by section 1589, Revised Statutes, 1889, to “prevent and remove nuisances,” but they have no power to declare what shall be a nuisance, as is provided ill some charters.. Therefore, defendant city has no power to declare that to be a nuisance, which is not so at common law, or declared to be such by some statute. And the power to abate such nuisance is said by Wood on Nuisances; 823, not to warrant the destruction of property which has been lawfully erected.

If it be a part of defendant’s contention that the defendant city had the power to declare plaintiff’s building a nuisance, without reference to a fire ordinance prohibiting frame buildings within a certain limit, then we djeny the power. Such power would authorize the confiscation of property and the destruction of vested rights. A frame building is not a nuisance per se (Wood, 830), and when erected while lawful so to do, as before stated, cannot afterwards by ordinance be abated as being within fire limits afterwards established. Wadleigh v. Gilman, 12 Me. 403-6; Klinger v. Bickel, 117 Pa. St. 326, 339.

As we understand the further position of the counsel for the city, it is contended, in substance, that if the city had no authority to order the removal or destruction of this building, then the acts of its officers in carrying out such order will not bind the city. We cannot sustain this position. It is quite fully disposed of, adversely to the contention, in a clear and concise opinion by Judge Henry, in the case of Dooley v. Kansas City, 82 Mo. 444. The defendant city here had authority to prevent and remove nuisances, and in undertaking to exercise such power it invaded and trespassed upon plaintiff’s rights, and must answer for the consequences.

Other points made against the action of the trial court cannot be sustained. The petition we regard as stating a cause of action for trespass.

The judgment will, therefore, be affirmed.

All concur.