Garrett v. Janes

3 A. 597, 65 Md. 260, 1886 Md. LEXIS 26

• Court: Court of Appeals of Maryland
• Decided: April 9, 1886
• Status: Published

Opinion

Ritchie, J.,

delivered the opinion of the Court.'

The controlling question in this case, and the only one, after full consideration, we deem it necessary to dwell upon, is whether the structure complained of is in respect of the distance it projects upon the sidewalk, and of its architectural character, authorized by an ordinance of Baltimore City.

The Act of 1833, ch. 180, empowered the Mayor and City Council to pass ordinances regulating the limits within which it should be lawful to erect steps, porticos or porches or other architectural ornaments to houses fronting on Mount Vernon or Washington Place. The first ordinance passed in pursuance of this Act was No. 55, of 1850 ; and the same regulations contained therein were re-enacted in 1858, and numbered 59 in the volume of “ Revised Ordinances” of that year ; the difference between the latter and that of 1850 being merely in the preambles, but in which they both refer to the Act of 1833 as their authority. The enacting provision of the ordinance of 1858 is: “It shall not be lawful for any person to erect or set up any portico, steps or any other ornamental structure whatever on Mount Yernon Place a greater distance into the Place than nine feet, measuring from the building line thereof.”

The width of Mount Yernon Place is two hundred feet, and of its sidewalks, eighteen feet.

It is contended by the appellee that this municipal permission to encroach with any portico, steps or any other ornamental structure upon Mount Yernon Place nine feet, which is half the width of the pavement, has been repealed by the Act of 1854, ch. 9, and the Ordinance No. 36, of 1874, adopted thereafter. This Act of 1854 conferred on the Mayor and City Council the power of regulating the limits within which it should be lawful to erect steps, porticos, bulk windows or other architectural ornaments to houses fronting on any of the streets, lanes or alleys of the city. This Act is codified as sec. 864 of Art. 4, of Public Local Laws. The ordinance of 1874 fixes the limit that any steps, porch or portico may encroach from the building line upon any of the streets or alleys at one-third the width of the foot-way; and repeals all “ inconsistent ordinances.”

The operation of the Act of 1854 did not, we think, take away the power conferred by the Act of 1833. It simply enlarged the power already bestowed as to a part of the city to embrace the whole of it. The power having already been given to regulate porches, áse., in Mount Yer-non Place, a fair presuqiption is, that this later Act was intended to apply to that portion of the city for which no such power had been given; and that, hence, the use of the words, “ streets, lanes and alleys,” was not meant to embrace the thoroughfares of Mount Yernon Place, already provided for. Indeed, the designation of Mount Yernon Place as a “ Place ” tends to support this contra-distinction. It is a locality of unusually spacious dimensions, and having special requirements as the site of the Washington Monument.

The same observations are equally applicable to the ordinance of 1814, founded on the statute.

But whatever might be the true construction of the ordinance of 1814, if it were the last act of municipal legislation on the subject to which it relates, or even assuming that it operated a repeal of the ordinance of 1858, this latter ordinance was revived by re-enactment in the adoption of the City Code of 18Í9. Both these ordinances are embodied in this Code; and all the ordinances therein set out, were by a special and comprehensive ordinance enacted to be valid and operative as such. That it is competent for a municipal Legislature by a single ordinance to declare any compilation of ordinances or proposed ordinances in force, in the absence of a statutory prohibition, we do not ’doubt. Such a power has been too generally exercised, with implied if not express recognition by the Courts to be now questioned.

The Baltimore City Code of 1819, has been recognized as the repository of the ordinances, valid at its adoption, in the subsequent city legislation, and has been cited by parties and relied on by this Court in numerous cases as of undoubted authority. To deny the operative effect of a comprehensive ordinance of this kind, would practically be to deprive a city of the great utility of a Code.

That the Code of 1819 was duly adopted, is apparent from the ordinances published with it. Section 48 of Article 31, Public General Laws, provides, that the ordinances and resolutions of the Mayor and City Council of Baltimore, may be read in evidence from the printed volumes published by the authority of said corporation. That the “printed volumes” are published by authority, we think it competent to gather from the volumes as they appear in print; the object of the law being to remove the delay and expense incident to the production of manuscript originals, • where the published volumes purport to be authoritative.

There is no specific reference to the ordinance allowing “any portico, steps, or any other ornamental structure whatever,” to extend nine feet into Mount Vernon Place, in that clause of the ordinance of 1874, which repeals “ inconsistent ordinances ;” and regarding the former as a special and the latter as a general ordinance, they should be considered as in pari materia. They are not inherently incompatible. The general rule in the construction of statutes — applicable alike to the Act of 1854 and the ordinance of 1874 — is, that a later one of a general nature does not effect the repeal of a special one, unless direct reference is made to the latter with that intent, or in terms they are so so irreconcilable that a repeal by implication is manifest.

Sedgwick on Con. of Stat. and Constit. Law, (2nd Ed.,) p. 87, &c., thus states the rule :

“In regard to the mode in which laws may be repealed by subsequent legislation, it is laid down as a rule, that a general statute without negative words, will not repeal the particular provisions of a former one, unless the two "acts are irreconcilably inconsistent, as for instance, the Statute 5 Elizabeth, c. 4, that none shall use a trade without being an apprentice, did not take away the previous Statute 4 and 5 Philip and Mary, c. 5, declaring that no weaver shall use, &c. The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and, he has acted upon it," a subsequent statute in general terms or treating the subject in a general manner, and not expressly contradicting the original Act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter Act such a construction in order that its words shall have any meaning at all. So when an Act of Parliament had authorized individuals toándose and embank portions of the soil under the river Thames, and had declared that such land should be free from all taxes and assessments whatsoever. The land tax Act, subsequently passed, by general words embraced all the lands in the kingdom; and the question came before the King’s Bench, whether the land mentioned in the former Act had been legally taxed, and it was held that the tax was illegal.”

We see no difficulty in the standing together of a special ordinance adapted to a particular locality, such as Mount Yernon Place, and a general one applicable to the streets and alleys of the city at large. The need of such discrimination is apparent. The necessities of thoroughfares such as Baltimore or Pratt street, for instance, or of those adjacent to markets or wharves, devoted to business and thronged with pedestrians, and of streets and alleys as generally used, are not similar to those of Places or Squares set apart for ornament and relief from the crowds and activities of commerce. As to the former, facility of passage along the sidewalks is a paramount requirement,, while as to the latter, it is in furtherance of the purpose to render them attractive, to give more freedom to the exercise of private taste for adornment in their vicinity. In a city noted for its monuments, municipal legislation peculiar to their neighborhood would seem indispensable; and we regard the ordinance allowing steps, porticos, or any other ornamental structure to extend nine feet into Mount Yernon Place a valid and reasonable exercise of statutory power, derivable from the Act of 1854, even if we assume it to have repealed that of 1833.

Eegarding this ordinance of the City Code of 1819, as in force, the next inquiry is, whether the structure in front of appellant’s building line on Mount Yernon Place is within its terms.

This structure extends within a fraction of nine feet from the front or building line of appellant’s house, is rectangular or nearly so in shape, has an elevation of about twenty-two feet from the ground, with a balustrade of two feet additional, tlie whole being about the height of the first story, with a length of some twenty-two feet, and ■ending on the side of plaintiff’s house, nearly nine feet from the dividing line between him and defendant, and about eleven feet and a half from plaintiff's window. The approach is by steps at the east end, and through it an ■entrance is gained to the main hall, with which it corresponds in width, through three arcades or doorways, set in the wall on the building line of the house, and susceptible ■of being left open or closed by doors or hangings. It is built'of brownstone, as the house is, and enclosed, having two stained glass windows and an ornamental panel in front, ,and another stained glass window in the west end. While some other and more customary mode of entrance ■and one unenclosed, could have been selected, this is the main entrance-way to defendant’s house adopted as such; and while, from being enclosed, the doo/ways or arches .through which visitors or inmates pass from this entrance-way into the hall or building proper may remain open, its primary use and purpose is a means of access to the building through the three doorways which are abreast of and ■command the hall; and thus is essentially an enclosed porch or portico for that purpose. That the hall of a house should be constructed with three doorways, commanding its entire breadth instead of one, is"; simply a matter of choice in the builder, and is not prohibited; and there is no' requirement that they shall be exposed to view, nor is it forbidden that they may he protected by enclosing the platfofm or porch by which access to them is reached. That such a structure is permissible “is clear from its not transcending the limit of nine feet from the building line, and falling within the terms of “portico, steps or any other ornamental structure.” From the use of these words, no limitations seem to be imposed upon the preference or taste of the builder, except that in the mode of providing an entrance to his house, he shall not erect what will offend the eye, but so construct it that it shall be architecturally an ornament, and thus contribute to enhance the beauty of the neighborhood and city. To impose no restrictions but the standard of adornment, was a wise latitude looking to the changes in tastes and architectural modes and styles, that time might be expected to-bring.

The testimony is conclusive as to the essential character of the structure being that of an entrance-wav, and as to its ornamental effect. A number of architects were examined on both sides, and the tenor of their opinions, as experts was the same. Wyatt, one of the witnesses,, says: “ The most accurate designation for it, I should consider, would be an enclosed porch or vestibule. I consider it highly ornamental.” Niernsee, another, says: “It would certainly come under the term ornamental structure.” Wilson says : “I should call it an enclosed porch. It harmonizes perfectly in detail and style.” Pennington says: “ The projection I consider a feature, forming the main entrance-way to the house, and would term it an enclosed porch, forming on the inside a vestibule to the main hall. I consider the design of the porch in harmony with the rest of the building.” Architects from New York testify to the same effect. Cady says: “ The projection is ■ designated in New York as a stoop, in some other places as a porch. The porch is to make an effective and ornamental entrance to the building and to protect the steps and entrance from the weather. It seems to harmonize perfectly with the design of the said building* I have seen many residences in New York with similar projections.” Haight says: “The projection appears to be an enclosed porch. The purpose is to give access to and adorn the building. It seems to be in harmony with the architecture of the building, and I know of residences in New York and elsewhere having similar projections.” Post says: “It is an enclosed porch, it is •an entrance to the house and a protection to the doorway. It also emphasizes the main entrance of the house. I think it harmonizes thoroughly with the design, and is a very handsome feature.” Robertson . says: “I should term the projection an enclosed porch. Its use is to give a covered entrance to the house, and its purpose is to •serve as an ornamental structure. I should say that in the main it harmonizes with the design, and is not out of proportion to the general mass of the front.” It is true that some of the plaintiff’s witnesses called it a vestibule; but others term it an enclosed porch, while its ornamental ■character is generally conceded. We do not concur in the idea that the ordinance, from using the descriptive terms, “portico, steps,” &c., and not mentioning porch, meant to forbid the erection of porches, or used “portico ” in a technical sense, as distinguishing it from porch, piazza, verandah or any other equivalent mode of entrance, but In a generic sense and as synonymous. Besides, the words, or “any other ornamental structure,” would include a porch, if handsome, whether enclosed or unenclosed, if not implied in the word portico.

Its primary character being an enclosed porch, we do not think its subsidiary uses can destroy its essential nature. The enclosing of a portico or porch is not forbidden. An enclosed one has advantages in respect of the weather and certain forms of embellishments, and admits of the doorways to the building proper being left open, and of freer access between the hall and the porch, than would be possible if the latter were left exposed to the weather. But being enclosed does not render it any less "the main -entrance-way. And so in regard to its projection; being lawful to extend it as the means of entrance nine feet into the sidewalk, its foundation is lawful to support it that distance from the building line; and when laid for that purpose, such purpose is not affected by the incident of ■the walls being either built entirely solid, or having windows cut in them to secure a subsidiary use inside. We do not think it would remain a porch if the foundation walls were loft solid and become a bay window if' light were let through apertures made therein; provided the harmonious character and use of the structure as a porch were not altered thereby. The subordinate uses which may be made of a structure will not supersede its essential character. The incidental or inferior features will not of necessity be inconsistent with the maintenance of its dominating and original impress.

(Decided 9th April, 1886.)

This porch being, therefore, in its extent from the building line, and in its ornamental effect a lawful structure, it follows that the plaintiff, oven if some measure of obstruction to his light or other injury, is consequent upon its erection, is not entitled to relief; such damage is damnum absque injuria. The inconvenience suffered is that incident to residing in a city, where houses are necessarily close together, and the legitimate use of his property by a neighbor will unavoidably often cause discomfort, and where he in turn will suffer inconvenience from the same cause. It often occurs that it would be more agreeable if next door there were not a tree, or an awning or a signboard to obstruct the light; but where such obstructions rightfully exist, they afford no ground for legal redress.

As to any interruption of the plaintiff’s facilities of outlook in the sense of view merely, it has been long ago decided that for mere interference with prospect, it not being an incident of the estate, no remedy lies apart from contract. Aldred’s Case, 9 Coke, 59; Butt vs. Imperial Gas Co., L. R., 2 Ch. Appeals, 160.

Decree reversed, and bill dismissed.

Bryan, J., dissented.