Russell v. City of Fargo

148 N.W. 610, 28 N.D. 300, 1914 N.D. LEXIS 108

• Court: North Dakota Supreme Court
• Decided: June 6, 1914
• Status: Published

Opinion

Spalding, Ch. J.

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 with reference to such building, or interfering with her making such repairs as she may be advised are necessary with reference thereto, and for general equitable relief.

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 costs, and the cost of establishing and maintaining the wooden railing heretofore referred to, and that she be enjoined from repairing said block, or any part thereof, or occupying the same.

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 prescribe the maimer of ascertaining such damage, and to provide for the removal of any structure or building erected contrary to such prescription, and to declare each day’s continuance of such structure or building a separate offense, and prescribe penalties therefor; and define fireproof material, and by ordinance provide for issuing building permits and appointment of building inspectors.” Paragraph 57 empowers the council to “declare what shall be a nuisance and abate the same and impose fines upon persons who may create, continue or suffer nuisances to exist.” In an attempt to comply with the power granted by these provisions, the city council of Fargo enacted the ordinances referred to in the complaint. The main building ordinance is of great length, and goes into particulars as to the construction of buildings in the city, and especially within the fire limits. The Ely block is within such limits.

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, and a third by the two thus chosen; that they shall make a true and just report of the amount and extent of such damage, and that the decision of the majority of such arbitrators, filed with the'inspector within ten days from the time they qualify, shall be final and conclusive; that the party asking for arbitrators shall pay $30 to the city auditor. This ordinance, as amended in 1910, makes the city engineer ex-officio inspector of buildings, and prohibits the construction or erection within the city of any building without a permit first obtained from the inspector. Fees are prescribed for the issuance of such permits, of $1 for buildings costing $500 or less, and graduated up to the sum of $7 for buildings costing more than $10,000, and all persons are prohibited from continuing any building operations after the inspector has directed the suspension thereof, with a like provision as to materially altering any building without a permit.

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 condition for twenty years; that there was absolutely no danger of the building coming down. He testified that it would cost not to exceed $70 to put in a cross-brick wall from the basement to the second floor, and lock that to the joists; that he would tie it to a building adjoining it and extending about half the length of this building and owned by the plaintiff, at a cost of $84; that he proposed to take out about 70 or 80 lineal feet of the south wall and replace it with a new wall, which would cost $368, and certain repairs on the veneering on the south side would cost $210; that the taking out of certain piers and rebuilding them to make them plumb would cost $75; odds and ends $200. The repair of certain joists which were rotted off near one end was also recommended. He testified that the repair of the whole building, puting it in good condition, would cost about $2,500; that of the $1,037 necessary to make it structurally safe, he would put about $400 above the foundation, but that of the $2,500 mentioned as repairing the whole block, about $1,600 would go in above the first floor, and that the proportion of the repairs to the value of the building would be as 16 to 80. He testified that there was positively no danger of the building’s falling upon pedestrians on the north side; that it was practically in the same condition as to its walls as it was eighteen or twenty years ago.

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 observations; that the floors of the second floor were not worth anything, bnt those on the first floor were in much better condition; that he also made figures based on his observation of the condition of the building, and estimated the deterioration would exceed 50 per cent of its actual value above the foundation, and, being inside the fire limits, nothing could save it except reconstruction or practically a new building from the basement up.

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 went into the building and looked' it over; that it could be straightened and fixed up for much less than 50 per cent of its value; that he would guess from his observation that it would cost $16,000 or $17,000 to put up a new building like it or under the same system of building; that he did not pretend his estimate was accurate.

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 falling walls, makes it necessary. Every owner of property holds it subject to the right of the public to prescribe reasonable safeguards and regulations for the public protection; and the interests of the individual must give way to the public safety (Klingler 1. Bickel, 117 Pa. 326, 11 Atl. 555; L’Hote v. New Orleans, 177 U. S. 587, 44 L. ed. 899, 20 Sup. Ct. Rep. 788), but the right in private property cannot be taken away on mere guesswork or surmise. To permit this would unsettle nearly every property right in existence.

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 , 13 L.R.A. 481, 28 Am. St. Rep. 185, 28 N. E. 434. We construe ¶ 47 of § 2678, Rev. Codes 1905, and the portion of the city-ordinance under which the authorities were attempting to act, as having been enacted solely with reference to protection from fire, and as not necessarily furnishing a proper basis for protecting the public against personal injury by reason of the danger of brick walls or other portions of a superstructure falling.

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 authorized to declare what shall be a nuisance and abate the same. Under this and the other laws relating to the abating of nuisances and the protection of the public, appropriate proceedings may be instituted with that end in view, and we are satisfied that summary action, may be taken, as was in effect done in the case at bar. It cannot be that, when officials observe the dangerous condition of a structure, they should be compelled to allow the lives of the public to be imperiled until the commencement and determination of appropriate proceedings in court, possibly rendering the city in the meantime liable for injuries which might have been prevented by summary action. Eichenlaub v. St. Joseph, 113 Mo. 395, 18 L.R.A. 590, 21 S. W. 8; Hine v. New Haven, 40 Conn. 478. Of course, when they are protected by the judgment of a court, their liability is not the same as when they proceed on their own judgment and responsibility. In the latter case, it appears that they do so at their own risk of being able to prove the fact of peril to the public. In the case at bar, we think the evidence preponderates in favor of the attitude of the city, that there was danger to occupants of the sidewalk, and that therefore the officials were justified, regardless of the percentage of deterioration of the building, either above or below the foundation, in taking the steps which they did take to protect the public.

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 the payment of a fee into the city treasury. We have heretofore indicated the amount of such fees as depending upon the cost of the structure, the highest being $7 for buildings over $10,000 in cost. This is not an unreasonable fee. The city may in proper cases require the payment of such a fee as shall reasonably compensate it or its officials-for services performed. The authorities sustain this. Johnson v. Grand Forks County, 16 N. D. 363, 125 Am. St. Rep. 662, 113 N. W. 1071, is a case directly in point. In the cases contemplated by the-ordinance in question, the building inspector is required to examine the plans and specifications, or perhaps buildings to be repaired, before issuing permits; and we cannot see that fees ranging from one to seven dollars are unreasonable compensation for the labor and skill required in ascertaining whether the building or repairs are in conformity with lawful requirements.

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 •Constitution and onr form of government in tbe courts. There is a ■•sense in which nearly all administrative officials exercise judicial power, and in so far as the portion of the ordinance which seems to be attacked .attempts to delegate such power to the council or building inspector, we think it comes within the legal requirements, unless it be the attempt to make the decisions of the arbitrators final, and this need not be ■determined.

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.