[7]*7The following opinions were filed October 24, 1919:
Dibell, J.1
Mandamus on the relation of the Twin City Building & Improvement Company against James G. Houghton, inspector of buildings of Minneapolis, to compel him to issue a building permit. There was an answer to the alternative writ to which a demurrer was sustained and judgment was then entered for the relator from which the defendant appeals.
The question is upon the right of the relator to construct a three-story apartment building upon property which he owns in Minneapolis. His right to do so is conceded, unless he is prevented because of certain proceedings taken by the common council of Minneapolis, pursuant to Laws 1915, p. ISO, c. 128, resulting in the designation of block 8 in J. T. Blaisdell’s Revised Addition to Minneapolis as a restricted residence district in which the construction of such a building is prohibited. The relator owns lot 13 and the south 34.9 feet of lot 12 in this block and purposes erecting an.apartment building. Sections 1 and 2 of the act of 1915 are as follows:
Section 1. Any city of the first class may, through its council, upon petition of fifty (50) per cent of the owners of real estate in the district sought to be affected, designate and establish by proceedings hereunder restricted residence districts within its limits wherein no building or other structure shall thereafter be erected, altered or repaired for any of the following purposes, to-wit, hotels, restaurants, eating houses, mercantile business, stores, factories, warehouses, printing establishments, tailor shops, coal yards, ice houses, blacksmith shops, repair shops, paint shops, bakeries, dyeing, cleaning and laundering establishments, bill-boards and other advertising devices, public garages, public stables, apartment houses, tenement houses, flat buildings, any other building or structure for purposes similar to the foregoing. Public garages and public stables shall include those, and only those, operated for gain.
Nothing herein contained shall be construed to exclude double residences or duplex houses, so-called, schools, churches, or signs advertising for rent or sale the property only on which they are placed.
No building or structure erected after the creation of such district shall be used for any purpose for which its erection shall be prohibited hereunder.
[8]*8The term “council” in this act shall mean the chief governing body of the city by whatever name called.
. See. 2. The council shall first designate the restricted residence district, and shall have power to acquire by eminent domain the right to exercise the powers granted by this act by proceedings hereinafter defined, and when such proceedings shall have been completed the right to exercise such powers shall be vested in the city.
If under this statute the relator’s property can be condemned against its use as a site for an apartment building, it is not aggrieved, and the only question which we find necessary to determine is whether there is a public use upon which to rest a condemnation.
The right to condemn private property for public use is not questioned. It is an attribute of sovereignty. The private owner holds his property subject to the superior right of the state to take it for public use, but it cannot take it except for public use. The payment of compensation gives no right. It is a condition to the exercise of the right. Whether the use is a public use is a judicial question. The courts are charged alike with the duty of giving effect to the sovereign right to take and of protecting the individual against an appropriation for other than a public use.
The right of the owner to use Ms property as he sees fit, if he does not unjustly injure others, is as much unquestioned as is the sovereign right to take it for public use. It is fundamental in our government. It makes ownership valuable and attractive. It is a right cherished as an incident of our free institutions. Its exercise is an affirmation of the equality of all before the law and a denial of class superiority. Of course the private owner may be restricted in the use of his property without its appropriation by condemnation. He is only one of the community. He must yield to its welfare. He must not use his property so as unnecessarily or unjustly to interfere with others. He must not create a nuisance. His protected private right is subject to the exercise of the police power resident in the state to prohibit, and this without compensation, a use of his property which injuriously affects the public health or safety or general convenience and welfare of the community.
The use to wMch the relator purposes putting its property is legitimate. Not all people can live or wish to live in detached houses. Some [9]*9from choice and some from necessity seek apartments. It is true that apartment buildings are not welcome in exclusive residence districts. Their appearance is not liked. They bring more people into the neighborhood and their presence there and their going and coming is thought by some undesirable. It is not sought to prohibit apartments, nor to prevent people living in them. It is proper enough that apartments be located elsewhere and that people live in them there, for the living conditions they offer are wholesome and the people who use them are good people. They are banned because of the environment. An apartment building does not affect the public health or public safety or general well being so that it may -be prohibited in the exercise of the police power. This we take to be the effect of our decisions. State v. Houghton, 134 Minn. 226, 158 N. W. 1017, L.R.A. 1917F, 1050; State v. City of Minneapolis, 136 Minn. 479, 162 N. W. 477. If such a building affects the public health or safety or well being of the community within the meaning of the police power, it can be outlawed by ordinance or statute without condemnation and accompanying compensation, and there is no need of condemnation against a nuisance. It is only when something rightfully belonging to another is to 'be taken from him in the exercise of the superior sovereign right for a necessary public use that resort need be had to condemnation.
By the condemnation which the statute provides neither the city nor the general public gets a physical use of the condemned premises. They cannot use them in any way. They do not wish to use them in the ordinary sense. They do not want them used for an apartment. They cannot go upon them. The so-called use is negative; it prevents an otherwise lawful use by the owner and in no other way is it a use at all. He still owns the land, and <jan keep people off it. He may leave it vacant. He may build any kind of a building which he chooses except one forbidden by the statute. A fifty per cent vote, with the approval of the common council, has made it so if it is so. It is not so unless the use is public.
When once the principle is announced, that a residence district may be created by the common council upon a majority vote of the owners and the land condemned against the use of the property for an apartment building, the way is open for the condemnation, upon legislative authori[10]*10zation, of property in exclusive residence districts against a use for substantially any class of dwellings then thought to be not in keeping with community surroundings. It may reach the humble and shabby dwelling, for such a dwelling may be found objectionable as readily as an apartment.
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[7]*7The following opinions were filed October 24, 1919:
Dibell, J.1
Mandamus on the relation of the Twin City Building & Improvement Company against James G. Houghton, inspector of buildings of Minneapolis, to compel him to issue a building permit. There was an answer to the alternative writ to which a demurrer was sustained and judgment was then entered for the relator from which the defendant appeals.
The question is upon the right of the relator to construct a three-story apartment building upon property which he owns in Minneapolis. His right to do so is conceded, unless he is prevented because of certain proceedings taken by the common council of Minneapolis, pursuant to Laws 1915, p. ISO, c. 128, resulting in the designation of block 8 in J. T. Blaisdell’s Revised Addition to Minneapolis as a restricted residence district in which the construction of such a building is prohibited. The relator owns lot 13 and the south 34.9 feet of lot 12 in this block and purposes erecting an.apartment building. Sections 1 and 2 of the act of 1915 are as follows:
Section 1. Any city of the first class may, through its council, upon petition of fifty (50) per cent of the owners of real estate in the district sought to be affected, designate and establish by proceedings hereunder restricted residence districts within its limits wherein no building or other structure shall thereafter be erected, altered or repaired for any of the following purposes, to-wit, hotels, restaurants, eating houses, mercantile business, stores, factories, warehouses, printing establishments, tailor shops, coal yards, ice houses, blacksmith shops, repair shops, paint shops, bakeries, dyeing, cleaning and laundering establishments, bill-boards and other advertising devices, public garages, public stables, apartment houses, tenement houses, flat buildings, any other building or structure for purposes similar to the foregoing. Public garages and public stables shall include those, and only those, operated for gain.
Nothing herein contained shall be construed to exclude double residences or duplex houses, so-called, schools, churches, or signs advertising for rent or sale the property only on which they are placed.
No building or structure erected after the creation of such district shall be used for any purpose for which its erection shall be prohibited hereunder.
[8]*8The term “council” in this act shall mean the chief governing body of the city by whatever name called.
. See. 2. The council shall first designate the restricted residence district, and shall have power to acquire by eminent domain the right to exercise the powers granted by this act by proceedings hereinafter defined, and when such proceedings shall have been completed the right to exercise such powers shall be vested in the city.
If under this statute the relator’s property can be condemned against its use as a site for an apartment building, it is not aggrieved, and the only question which we find necessary to determine is whether there is a public use upon which to rest a condemnation.
The right to condemn private property for public use is not questioned. It is an attribute of sovereignty. The private owner holds his property subject to the superior right of the state to take it for public use, but it cannot take it except for public use. The payment of compensation gives no right. It is a condition to the exercise of the right. Whether the use is a public use is a judicial question. The courts are charged alike with the duty of giving effect to the sovereign right to take and of protecting the individual against an appropriation for other than a public use.
The right of the owner to use Ms property as he sees fit, if he does not unjustly injure others, is as much unquestioned as is the sovereign right to take it for public use. It is fundamental in our government. It makes ownership valuable and attractive. It is a right cherished as an incident of our free institutions. Its exercise is an affirmation of the equality of all before the law and a denial of class superiority. Of course the private owner may be restricted in the use of his property without its appropriation by condemnation. He is only one of the community. He must yield to its welfare. He must not use his property so as unnecessarily or unjustly to interfere with others. He must not create a nuisance. His protected private right is subject to the exercise of the police power resident in the state to prohibit, and this without compensation, a use of his property which injuriously affects the public health or safety or general convenience and welfare of the community.
The use to wMch the relator purposes putting its property is legitimate. Not all people can live or wish to live in detached houses. Some [9]*9from choice and some from necessity seek apartments. It is true that apartment buildings are not welcome in exclusive residence districts. Their appearance is not liked. They bring more people into the neighborhood and their presence there and their going and coming is thought by some undesirable. It is not sought to prohibit apartments, nor to prevent people living in them. It is proper enough that apartments be located elsewhere and that people live in them there, for the living conditions they offer are wholesome and the people who use them are good people. They are banned because of the environment. An apartment building does not affect the public health or public safety or general well being so that it may -be prohibited in the exercise of the police power. This we take to be the effect of our decisions. State v. Houghton, 134 Minn. 226, 158 N. W. 1017, L.R.A. 1917F, 1050; State v. City of Minneapolis, 136 Minn. 479, 162 N. W. 477. If such a building affects the public health or safety or well being of the community within the meaning of the police power, it can be outlawed by ordinance or statute without condemnation and accompanying compensation, and there is no need of condemnation against a nuisance. It is only when something rightfully belonging to another is to 'be taken from him in the exercise of the superior sovereign right for a necessary public use that resort need be had to condemnation.
By the condemnation which the statute provides neither the city nor the general public gets a physical use of the condemned premises. They cannot use them in any way. They do not wish to use them in the ordinary sense. They do not want them used for an apartment. They cannot go upon them. The so-called use is negative; it prevents an otherwise lawful use by the owner and in no other way is it a use at all. He still owns the land, and <jan keep people off it. He may leave it vacant. He may build any kind of a building which he chooses except one forbidden by the statute. A fifty per cent vote, with the approval of the common council, has made it so if it is so. It is not so unless the use is public.
When once the principle is announced, that a residence district may be created by the common council upon a majority vote of the owners and the land condemned against the use of the property for an apartment building, the way is open for the condemnation, upon legislative authori[10]*10zation, of property in exclusive residence districts against a use for substantially any class of dwellings then thought to be not in keeping with community surroundings. It may reach the humble and shabby dwelling, for such a dwelling may be found objectionable as readily as an apartment. And when the humble home is threatened by legislation upon aesthetic grounds, or at the instance of a particular class of citizens who would rid themselves of its presence as not suited in architecture or in other respects to their own more elaborate structures, a step will have been taken inevitably to cause discontent with the government as one controlled by class distinction, rather than in the interests and for the equal protection of all. It is not believed that the public welfare can be promoted by such legislation.
We do not overlook nor discourage the tendency to extend the power of restriction of the use of city property through the exercise of the police power in aid of more wholesome and sanitary, living conditions. The housing act of 1917, not yet construed, is an illustration. Laws 1917, p. 185, c. 137. The act of 1915, as applied to the situation before us, has no purpose to improve housing conditions. The tendency noted is illustrated in State v. Houghton, 142 Minn. 28, 170 N. W. 853, where we held that the exclusion of a factory manufacturing cereal products from a restricted residence district, created pursuant to Laws 1913, pp. 102, 618, cc. 98, 420, was sustainable under the police power, though the district was sparsely settled, and though the property was naturally suited for the use of such a factory located as it was on a railway line, but the use of the factory involved substantial physical discomfort and annoyance to the residents. In many ways, not worth the while mentioning here, one may, by legislation under the police power, be restricted in the use of his property. Dunnell, Minn. Dig. and 1916 Supp. § 1603, et seq. And as a matter of private right, without legislation under the police power, we sustain an interference by injunction with the operation of a stone quarry so conducted as to bring substantial physical discomfort and annoyance to nearby residents. Brede v. Minnesota Crushed Stone Co. 143 Minn. 374, 173 N. W. 805. And in the same way we sustain a restrietion of the use of property for stabling purposes. Lynch v. Shiely, 131 Minn. 346, 155 N. W. 958.
The case before us is not in principle nor in facts like In re City of [11]*11New York, 57 App. Div. 166, 68 N. Y. Supp. 196, where there was a condemnation for the purpose of widening a street by adding a strip on each side, which was not to be used for purposes of travel but for ornament and beauty, with a reservation of a limited use in the owner. Nor is it like Bunyan v. Commissioners, 167 App. Div. 457, 153 N. Y. Supp. 622, where land used as a stone quarry along the Palisades of the Hudson was condemned for the purpose of preserving the scenic beauty of the river and the park. Nor is it like Attorney General v. Williams, 174 Mass. 476, 55 N. E. 77, 47 L.R.A. 314, where a statute limiting the height of buildings about Copley Square and providing for compensation was sustained. Nor is it like U. S. v. Gettysburg Electric Ry. Co. 160 U. S. 668, 16 Sup. Ct. 427, 40 L. Ed. 576, where there was a con-'d emnation for preserving, improving and ornamenting the battle-field of Gettysburg. These uses were public.
No question is made of the right under proper authorization to condemn property for boulevards or for pleasure drives or for public parks or for public baths or for public playgrounds or for libraries and museums or for numerous other purposes which contribute to the general good and well-being of the community. In such cases there is a public use. In the condemnation here we see none. The desire of exclusive residence districts to preserve their environment is worthy enough. In condemning property against a building which is in itself proper and useful and offends only because it is out of harmony with the neighborhood surroundings we do not find a public use. We recognize that what constitutes a public use changes from time to time. Many uses recognized as public now were not thought so some years ago. We think the use here claimed as public is, within the meaning of the law of eminent domain, private. Considerable is made of the requirement of compensation, the provision for getting which, it may be remarked in passing, is made studiously difficult, but without a public use a provision for compensation is unimportant.
Numerous helpful briefs have been filed by counsel not appearing for the parties to the record but representing those having interests which will be affected by the decision. They have had attentive consideration. We have not mentioned all of the questions argued. Whether aside from the want of a public use there is anything in this ingeniously drastic [12]*12statute which makes it invalid we do not inquire and our decision is limited to the precise facts before us. A condemnation against an apartment house is not for a public use.
Judgment affirmed.