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volts. Testifying before the coroner's in its care and management, and casts jury that the normal supply to plain- upon the defense the burden of its ex.. tiff's premises was 110 volts, and, planation upon some theory consistent while it would be possible for him to with its exercise of due care." increase the voltage to 220, this had It is to be observed that neither of to be done by climbing a pole and con- the cases within the scope of this annecting another wire, and without notation refers to a rule, which such manipulation of the wires he is apparently well recognized, that could not deliver more than the nor- the doctrine of res ipsa loquitur has mal quantity of 110 volts. There was been held to have no application in some other evidence, not entirely an action against an electric lightclear, that the voltage might be run ing company for injury sustained up to 220, but that in neither in- on account of defective wiring on stance was the charge a dangerous private premises, where the wirone or liable to destroy human life. ing was not done by the company, but It further appeared by the defend- by the owner of the building unants' evidence that it would require der an independent contract, and was something like a charge of 1,000 or under the exclusive control of the more volts to deliver a fatal stroke. owner, the duty of the company being If it were found, as we hold it might merely to furnish current, it not bebe under the evidence, that this wom- ing required to inspect the condition an was killed by electric shock, it fol- of the wiring of the building. Minlows of necessity that in some way the neapolis General Electric Co. v. Crowiring extending into and through the non (1908) 20 L.R.A.(N.S.) 816, 92 C. basement of the house was overloaded C. A. 345, 166 Fed. 651; Harter v. Colwith excessive and dangerous current, fax Electric Light & P. Co. (1904) 124 much in excess of the normal and safe Iowa, 500, 100 N. W. 508; Peters v. supply. An accident so occurring Lynchburg Light & & Traction speaks for itself and demonstrates the (1908) 108 Va. 333, 22 L.R.A.(N.S.) existence of a defect in the plant, or 1188, 61 S. E. 745.

W. A. S.

Co.

CHARLES E. PIPER, et al., Doing Business under the Name of Piper

Brothers, Appts.,

V.
HERMAN L. EKERN, Attorney General, Respt.

Wisconsin Supreme Court May 25, 1923.

(180 Wis. 586, 194 N. W. 159.)

Eminent domain, $ 155 — limiting height of buildings to prevent hazard

to state property. 1. Limiting the height of buildings on blocks surrounding the state capitol for the purpose of diminishing the fire hazard to the capitol buildings is a taking of the property above the height named, for which compensation must be made.

[See note on this question beginning on page 46.] Eminent domain, § 4 proof of ne- Constitutional law, $ 695 police cessity of taking.

power extent. 2. To justify a taking of property 3. All private property is held subunder the power of eminent domain it ject to a reasonable exercise of the must be established that the taking is police power of the state, pursuant to necessary for a public use.

which property rights may be regu[See 10 R. C. L. 27; 2 R. C. L. Supp. lated and diminished in value, for the 968; 4 R. C. L. Supp. 650.]

benefit either of the general public, or (180 Wis. 586, 194 N. W. 159.) of a certain portion of the public in congested business areas of large a specific area.

cities than in residential districts. [See 6 R. C. L. 193; 2 R. C. L. Supp. [See 4 R. C. L. 399; 1 R. C. L. Supp. 52; 4 R. C. L. Supp. 391.]

1132.]

Constitutional law, 8 696 — restricting Buildings, 8 7 – limiting height of buildings.

use of property – taking.

7. An unreasonable police regula4. The state may in the exercise of its police power impose regulations

tion restricting the right to use busi

ness property for business purposes which limit the height of buildings to

amounts to a taking of private propbe erected in cities where such regu

erty for a public use without compenlation is reasonably necessary for the

sation, contrary to the provisions of protection of the public health, the the Constitution. public safety, or the public welfare. [See 6 R. C. L. 473, 474; 2 R. C. L.

[See 6 R. C. L. 213; 19 R. C. L. 829.] Supp. 127.] Real property, § 3 extent upward.

Eminent domain, $ 154 regulation 5. An owner's right in real property

as taking. extends upward as well as downward.

8. Any regulation which deprives [See 22 R. C. L. 56; 4 R. C. L. Supp.

a person of the profitable use of his 1453.]

property constitutes a taking of the

property entitling him to compensaBuildings, 8 7 – right to construct

tion, unless the invasion is so slight buildings.

as to permit the regulation to be 6. The unrestrictable right to build justified under the police power. to a considerable height is greater in [See 6 R. C. L. 473.]

(Crownhart, J., dissents.)

APPEAL by plaintiffs from an order of the Circuit Court for Dane County (Stevens, J.) overruling a demurrer to the answer in an action brought to enjoin defendant from attempting to enforce the provisions of a statute limiting the height of buildings on property surrounding the state capitol. Reversed.

The facts are stated in the opinion of the court.

Messrs. Hall, Baker, & Hall, for ap- capacity, and is not for a public purpellants :

pose in the sense that it constitutes a The act is void because it takes the constitutional justification, for police plaintiffs' property without just com- interference. pensation, in violation of § 13, article Bonnett v. Vallier, 136 Wis. 193, 17 i, of the state Constitution of Wiscon- L.R.A.(N.S.) 486, 128 Am. St. Rep. sin.

1061, 116 N. W. 885; Fitts v. McGhee, State v. Redmon, 134 Wis. 89, 14 172 U. S. 516, 43 L. ed. 535, 19 Sup. L.R.A.(N.S.) 229, 126 Am. St. Rep. Ct. Rep. 269; Pennoyer v. McCon1003, 114 N. W. 137, 15 Ann. Cas. 408. naughy, 140 U. S. 1, 35 L. ed. 363, 11

The act is special and class legisla- Sup. Ct. Rep. 699; Western & A. R. Co. tion, and discriminating, in violation 'v. Carlton, 28 Ga. 180; Bank of United of the spirit of the Constitution, and States v. Planters' Bank, 9 Wheat. 904, contrary to public justice.

6 L. ed. 244; Boston Molasses Co. v. Janesville v. Carpenter, 77 Wis. 288, Com. 193 Mass. 387, 79 N. E. 828. 8 L.R.A. 808, 20 Am. St. Rep. 123, 46 N. The property of the plaintiff is taken W. 128; Boston Molasses Co. v. Com. without compensation. 193 Mass. 387, 79 N. E. 827; Re Jacobs, Atty. Gen. v. Williams (Knowlton v. 98 N. Y. 105, 50 Am. Rep. 636; Atty. Williams) 174 Mass. 476, 47 L.R.A. Gen. v. Williams, 178 Mass. 330, 59 N. 314, 55 N. E. 77; Williams v. Parker, E. 812; State ex rel. Milwaukee Sales 188 U. S. 491, 47 L. ed. 559, 23 Sup. Ct. & Invest Co. v. Railroad Commission, Rep. 440; American Unitarian Asso. 174 Wis. 458, 183 N. W. 687.

v. Com. 193 Mass. 470, 79 N. E. 878; The protection of the state capitol Parker v. Com. 178 Mass. 199, 59 N. E. and its contents is the protection of 634; Atty. Gen. v. Williams, 178 Mass. property of the state in its proprietary 330, 59 N. E. 812.

34 A.L.R.-3.

There was an arbitrary taking of sidered as the exercise of the power property without any legal proceeding of eminent domain, it is void because whatever.

it does not provide for compensaJanesville V. Carpenter, supra; tion. Mehlos v. Milwaukee, 156 Wis. 591, 51

An injunction as prayed for in the L.R.A.(N.S.) 1009, 146 N. W. 882, Ann. Cas. 1915C, 1102; 28 Cyc. 735.

complaint will issue. An opinion This is not a proper exercise of

will be filed later. police power

Jones, J., took no part.
Freund, Pol. Power, $ 143; State v.
Redmon, supra.

The promised opinion was handThe restraint imposed by the act is ed down on June 18, 1923, by Doerout of proportion to the danger al

fler, J., as follows: leged, and is unreasonable.

The appeal is from an order overState v. Redmon, supra; State ex rel. Winkler v. Benzenberg, 101 Wis. 172, ruling the general demurrer of the 76 N. W. 345; Bonnett v. Vallier, su

plaintiffs to defendant's answer. pra.

The material allegations of the comThere is a vast difference between plaint, in substance, are as follows: the "public purpose" which warrants Plaintiffs are copartners and the a state taking property by eminent do- owners of real estate situated on the main, and a "public necessity" which warrants the exercise of the police streets, in the city of Madison, hav

corner of Pinckney and Mifflin power to the extent of an absolute taking without compensation.

ing a frontage of 44 feet on PinckCom. v. Boston Adv. Co. 188 Mass.

ney street, and extending back on 348, 69 L.R.A. 817, 108 Am. St. Rep.

Mifflin street 120 feet; that they 494, 74 N. E. 601.

have had plans prepared for the conMessrs. Herman L. Ekern, Attorney struction of a fireproof hotel buildGeneral, and William R. Curkeet, for ing 115 feet high above the curb on respondent:

Pinckney street, and covering said The state may protect its property real estate, the building to be eleven by law from destruction at the hands

stories in height; that the estimated of individuals creating possible causes

cost of said proposed building is the of such destruction in the use of their private property.

sum of $350,000, and that the value State v. Redmon, 134 Wis. 89, 14

of the ground, exclusive of the buildL.R.A. (N.S.) 229, 126 Am. St. Rep. ing, when the building shall be erect1003, 114 N. W. 137, 15 Ann. Cas. 408; ed thereon, will be $150,000; that Prentice, Pol. Power, pp. 6, 7; Freund, plaintiffs claim that § 4444g of the Pol. Power, $. 3; Cochran v. Preston, Statutes, which limits the height of 108 Md. 220, 23 L.R.A. (N.S.) 1163, 129 a proposed building to be erected upAm. St. Rep. 432, 70 Atl. 113, 15 Ann.

on the so-called Capitol square to 90 Cas. 1048; Barbier v. Connolly, 113 U.

feet above the curb, is unconstituS. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357;

tional, and that they intend to proMehlos v. Milwaukee, 156 Wis. 591, 51 L.R.A. (N.S.) 1009, 146 N. W. 882, Ann.

ceed with the erection of the buildCas. 1915C, 1102; Welch v. Swasey, . ing in accordance with their pro214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. posed plans, notwithstanding such Rep. 567, 193 Mass. 364, 23 L.R.A. section, and that they have been (N.S.) 1160, 118 Am. St. Rep. 523, 79 threatened with prosecution, under N. E. 745; Atty. Gen. v. Williams the provisions of said statute, by the (Knowlton v. Williams) 174 Mass. 476, defendant, acting in his official ca47 L.R.A. 314, 55 N. E. 77.

pacity; that in order to make the Per Curiam:

contemplated hotel enterprise a payIt is held that 4444g of the Re- ing investment it is necessary to vised Statutes of 1921, prohibiting construct a building of the proposed the erection around the Capitol height, and that, if the building be square of buildings exceeding 90 feet limited to 90 feet in height, a loss on in height, is unconstitutional, be the value of the real estate would be cause it is not a valid exercise of the sustained in the sum of $50,000, and police power of the state, and, if con- an annual loss in the income of the

)

(180 Wis. 586, 194 N. W. 159.) proposed hotel of $35,000; that the between said capitol building and state of Wisconsin owns the so- the plaintiffs' premises is 387 feet; called Capitol square and the capitol that the plaintiffs have expressed building, in its proprietary capacity. their intention to proceed with the Plaintiffs ask for relief, a permanent construction of said hotel building injunction, enjoining the defendant, in accordance with the proposed in his official capacity, from attempt plans; and that the defendant has ing to enforce the provisions of said threatened to enforce the provisions statute against them.

of $ 4444g of the Statutes. The defendant in his answer ad- Plaintiffs thereupon entered a mits the location and ownership of general demurrer 'to the answer of plaintiff's property, as set forth in the defendant, which demurrer the the complaint, and the preparation circuit court overruled, and from the of plans, but denies that the build- order overruling said demurrer ing will be of fireproof construction, plaintiffs have taken this appeal. alleging that the hotel building, as We will first consider the attack proposed, will be built of stone, made by the plaintiffs upon said secwood, concrete, iron, and brick; ad- tion as being an unlawful taking of mits that in order to provide for 200 private property for a public purguest rooms as shown by the plans, pose, in violation of the due process it would be necessary to erect a clause of the 14th Amendment to the building of eleven stories, 115 feet Federal Constitution, and the proviabove the curb on Pinckney street; sions of g 13, art. 1, of the state Conadmits the estimated cost of the pro- stitution, which provides : “The posed building; that the real estate property of no person shall be taken would be more valuable with the for public use, without just compenbuilding erected as proposed, than sation therefor." if restricted to a height of 90 feet;

The statute in question reads as that a building 115 feet in height, follows: when conducted for hotel purposes,

“Sec. 4444g. (1) For the purpose will yield a greater financial return of preventing damage to the state than one 90 feet in height; admits capitol building and state property the ownership of the Capitol square

therein because of fire hazard, no and the capitol building, as is al- building or structure hereafter leged in the complaint; alleges that erected in the blocks, or any part the Capitol square consists of about thereof, surrounding state property 15 acres of land, and that the capitol included in the capitol park in the building is located in about the cen- city of Madison, namely, blocks seyter of such square, and that the gov- enty-two,

enty-two, seventy-three, seventyernment and public offices, records, four, seventy-five, seventy-six, sevetc., are contained in such building, enty-seven, eighty-three, eightyand that such building and records four, eighty-nine, ninety, ninetyare of great value; that the property nine, one hundred, one hundred one, contained in said building is essen- one hundred two, one hundred three, tial to the welfare of the public and or one hundred four shall exceed the discharge by the state of its gov- ninety feet in height, and exclusive ernmental functions; that the capi- of chimneys and elevator houses tol building is constructed of stone, erected thereon, measuring from the wood, steel, and other modern build- highest point of the curb line immeing material, but that the property diately in front of any lot or lots contained therein is readily subject upon which such building or structo destruction by fire; that to erect ture is erected; and no building now the building in accordance with the erected or in process of erection in proposed plans would materially in- any such block or any part thereof crease the danger and hazard to the shall be altered or reconstructed so capitol building and the contents that the same when completed will thereof from fire; that the distance exceed ninety feet in height when

necessity of taking.

measured as above provided. (2) D'Oench, 111 N. Y. 361, 18 N. E. Any person, firm or corporation who 862. shall cause, allow, or permit any Such regulation affecting the ownbuilding or structure to be erected,

ers of property in a certain area, to altered, or reconstructed in violation a large extent, is founded upon the of the provisions of this section shall mutual and reciprocal protection forfeit the sum of twenty-five dol- which owners of property derive lars for each day such violation con- from a general law, and, while in a tinues. (3) The attorney general sense a material diminution in valshall enforce the provisions of this ue may result, nevertheless a recipsection and shall institute proper rocal advantage accrues which in proceedings to restrain violations many instances it is impossible to thereof."

estimate from a financial standpoint, Private property taken for a pub but which nevertheless constitutes a lic purpose under the power of emi- thing of value and a compensating nent domain is transferred to the factor for the interference by the public, or to a public agency, upon public with property rights. the payment of its reasonable ascer- As is said in Watertown v. Mayo, tained value, and when private prop- 109 Mass. 319, 12 Am. Rep. 694: erty is taken under such power, it "Laws passed in the legitimate ex

must first be estab- ercise of this [the police) power are Eminent do

lished that the tak- not obnoxious to constitutional promain-proof of

ing is necessary for visions, although in some measure

a public use, and interfering with private rights, second, the reasonable value must be merely because they do not provide duly established and paid. All pri- compensation to the individual vate property is held subject to a whose liberty is restrained. He is Constitutional

reasonable exercise presumed to be rewarded by the law-police

of the police power common benefits secured. It differs power-extent.

of the state, which from the right of eminent domain, is based on an implied restriction which involves the appropriation of pursuant to which property rights private property to public use, and may be regulated and diminished in requires, in its lawful exercise, pevalue for the benefit of either the cuniary compensation for the loss general public or of a certain por- inflicted on the owner. tion of the public in a specified area. "To a great extent the legislature It has therefore been held, and it is the proper judge of the necessity appears now to be firmly established, for the exercise of this restraining that the state may, in the exercise of power. It is not easy to prescribe Buildings

the police power, its limit. The law will not allow -limiting height of build- impose

regulations rights of property to be invaded unings.

which limit the der the guise of a police regulation height of buildings to be erected in for the preservation of health or cities where such regulation is rea- protection against a threatened nuisonably necessary for the protection sance; and when it appears that such of the public health, the public safe- is not the real object and purpose of ty, or the public welfare. Welch v. the regulation, courts will interfere Swasey, 214 U. S. 91, 53 L. ed. 923, to protect the rights of the citizen. 29 Sup. Ct. Rep. 567; Cochran v. Preston, 108 Md. 220, 23 L.R.A. “Nor, as a police regulation, is it (N.S.) 1163, 129 Am. St. Rep. 432, essential that its provisions should 70 Atl. 113, 15 Ann. Cas. 1048; 4 be applicable to all parts of the comR. C. L. pp. 398, 399; 6 R. C. L. p. monwealth. Density of population 213; Tiedeman, State & Fed. Control is itself an element which may inof Persons & Property, 754; Water- crease the danger to be provided town v. Mayo, 109 Mass. 319, 12 Am. against, and which in any locality Rep. 694; People ex rel. Kemp v. may justify the interference of the

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