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(180 Wis. 586, 194, N. W. 159.) legislature and relieve it from the coal or mineral lands consists in the objection that its action is partial right to mine it, so the value of and unequal. The same rule is pro- business property in a business disvided for all, to be applied only trict in a city consists in the right where, from the surrounding cir- to use the property for business purcumstances, there is the same expo- poses, and any unreasonable police sure. Com. v. Alger, 7 Cush. 53; regulations restricting such right, Baker v. Boston, 12 Pick. 184, 22 in substance, amounts to the taking Am. Dec. 421; .

Coates v. of private property New York, 7 Cow. 585, 604." See for a public use, law-restrict

Constitutional also Welch v. Swasey, 193 Mass. 365, without compensa

ing use of

erty-taking. 23 L.R.A.(N.S.) 1160, 118 Am. St. tion. True, in one Rep. 523, 79 N. E. 745.

sense, such a restriction under the The owner's right in property, police power does not transfer propwhen unrestricted, extends not only erty from the private owner to the downward under the surface to an public, as is the case where the powunlimited extent, but also upwards, er of eminent domain is exercised;

and the latter right, nevertheless such restriction may be Real property, from common expe

of such a nature as to practically acextent upward.

rience, would ap- complish the same result, and the pear to be the more valuable. In distinction, as above indicated, with large cities, in congested business reference to the two methods sancareas, the value of property consists tioned for the taking or restricting almost exclusively in the right of the of the private right for the public owner to erect business and indus- use is often but technical. trial structures thereon, and the It has also been held that any well-defined distinction appears regulation which deprives any perfrom the authorities that the unre- son of the profitable strictable right in such localities to use of his property -regulation as

taking. build to a consider constitutes a taking Buildings -right to con- able height is great of property, and entitles him under struet buildings.

er than in residen- the Constitution to compensation, tial districts. Such rule seems to unless the invasion of rights is so follow from the necessity arising slight as to permit the regulation to out of the situation. Welch v. Swa- be justified under the police power. sey, supra. Without such right to Pumpelly v. Green Bay & M. Canal erect buildings to considerable Co. 13 Wall. 166, 20 L. ed. 557; Unitheight upon business areas, the own- ed States v. Lynah, 188 U. S. 445, 47 ership of property therein would be- L. ed. 539, 23 Sup. Ct. Rep. 349; come more a liability than an asset. Grand Rapids Booming Co. v. Jar

As is said in Com. ex rel. Keator vis, 30 Mich. 308; Edwards v. Bruv. Clear View Coal Co. 256 Pa. 328, orton, 184 Mass. 529, 69 N. E. 328; 331, L.R.A.1917E, 672, 100 Atl. 820: Hutton v. Camden, 39 N. J. L. 122, "For practical purposes, the right to 23 Am. Rep. 203. coal consists in the right to mine it." In Pennsylvania Coal Co. v. Ma

And, as is said in Pennsylvania hon, supra, which involved the conCoal Co. v. Mahon, 260 U. S. 393, stitutionality of the so-called Kohler 67 L. ed. 322, 28 A.L.R. 1321, 43 Act (P. L. 1921, 1198), forbidding Sup. Ct. Rep. 158: “What makes the mining of anthracite coal so as the right to mine coal valuable is to cause the subsidence of certain that it can be exercised with profit. buildings and places, it was held that To make it commercially impracti- such act cannot be sustained as an cable to mine certain coal has very exercise of the police power, so far nearly the same effect, for constitu- as it affects the mining of coal under tional purposes, as appropriating or streets or cities, in places where the destroying it."

right to mine such coal has been reAs the value of the ownership of served, and it is said: “The general

Eminent domain

rule, at least, is that, while property state is great, and it is readily conmay be regulated to a certain extent, ceded that a proper building is necif regulation goes too far it will be essary for such a purpose. It has recognized as a taking. It may be also been deemed necessary, in order doubted how far exceptional cases, to provide a heating system for the like the blowing up of a house to state capitol, to construct a heating stop a conflagration, go; and, if they plant some considerable distance go beyond the general rule, whether from the building, so as to avoid they do not stand as much upon tra- both danger from explosion and fire. dition as upon principle. Bowditch Nevertheless, no one can contend v. Boston, 101 U. S. 16, 25 L. ed. 980. that real property could be taken for In general, it is not plain that a this purpose without due compensaman's misfortunes or necessities will tion, nor could the right be acquired justify his shifting the damages to to construct a tunnel under private his neighbor's shoulders. Spade v. property, connecting the capitol Lynn & B. R. Co. 172 Mass. 488, 489, with such plant, in order to enable 43 L.R.A. 832, 70 Am. St. Rep. 298, such heating plant to furnish heat 52 N. E. 747, 5 Am. Neg. Rep. 367. for the capitol, without acquiring We are in danger of forgetting that the necessary easement under the a strong public desire to improve the

soil of the owners of private proppublic condition is not enough to erty, pursuant to the power of emiwarrant achieving the desire by a nent domain. shorter cut than the constitutional The public school system is guarway of paying for the change. As anteed by the Constitution, and it we already have said, this is a ques- cannot be contended to the contrary tion of degree, and, therefore, can- that there is anything more essential not be disposed of by general prop- and necessary to promote the generositions."

al welfare and to maintain our demoThe opinion in the Pennsylvania cratic system of government than Coal Company Case states that the the establishment and maintenance facts in that case go beyond any- of such system. Nevertheless every thing reported in the books. The act inch of property, when acquired for was declared unconstitutional by the such school purposes from private Supreme Court of the United States, owners, must be taken under the as being in violation of the contract power of eminent domain and comclause and due process clause of the pensated for. The same may be said Federal Constitution.

of public hospitals and other similar Whatever may be our opinion as institutions. to whether the Pennsylvania Coal To deprive the plaintiffs, for the Company Case above referred to, in purposes stated in the act, of their its facts, is extreme, we are con- right to erect the vinced, however, that the facts in proposed building at limiting

height of buildthe instant case far exceed it, from the height contem- ings to prevent the standpoint of an infraction of plated, substantially property. private rights. Not 1 square foot of amounts to a taking private property for the Capitol

the Capitol of their property right above a cersquare could be acquired for the pur- tain height limit. It is conceded in poses of the state without resorting the answer of the defendant that the to the power of eminent domain, nor restriction included in the act not could a single item of material be only materially affects the value of obtained by the state for the con- plaintiffs' proposed building, but struction of the building without also of the real estate. It would be making proper compensation there- useless to otherwise contend. Such for. The necessity for the acquiring restriction practically amounts to of property on which to build a state the granting of an easement over capitol in which are to be performed and above the 90-foot height providthe governmental functions of the ed for in the act, for the benefit of

(180 Wis. 586, 194 N. W. 159.) the state and its capitol, and such rounded by the principal business easement does not differ materially interests of the city of Madison. It from the easement required for the contains records of inestimable valtunnel to insure the connection of ue, necessary to the proper performthe heating plant with the capitol; ance of the governmental functions and the counsel for the defendant of the state. This state has been admit that the latter is properly the taught and has learned a valuable subject of acquirement by the power

lesson in the construction of a state of eminent domain. If such ease- capitol, for the former capitol was ment underground must be obtained destroyed by fire, and the necessity by condemnation, then, is there any for a fireproof building has thus reason why the state, in order to been forcibly impressed upon the protect its interests, should not re- minds of the legislators, and they sort to a similar proceeding to ac- have profited by the lesson. What quire what amounts to an easement there is about the building and its above the surface of plaintiffs' prop- contents that is destructible by fire erty?

communicated from buildings abutThe government of this great ting the square, with the exception state, representing the ideals of its of certain books and records, which citizens on the subject of a demo- could only be reached by a conflagracratic form of government, cannot tion in an extraordinary catasafford, under the guise of a police trophe, is beyond the imagination. regulation, to acquire rights to pri. It is argued by counsel for the state vate property, as is attempted by the that without the building and its act in the instant case, unless, under contents the governmental functions the Constitution, it is willing to would not only be greatly hampered, make proper compensation therefor. but to a large extent destroyed. No This act is not designed to promote conflagration, unless it be political the public welfare of the private in its nature, can destroy the govowners of property abutting upon ernment, as was demonstrated by the Capitol square. It is solely the former fire of our capitol buildbased upon a selfish motive, and is ing. There is a very marked disconfined to the protection from fire tinction between the instrumentaliof the state's property. The state ties used in the performance of govowns this property as any private ernmental functions, and the funccitizen owns property. It construct- tions themselves. The former are ed the capitol building, with its mere property interests, and the vaulting dome, to a height far be- state, while exercising its governyond anything contemplated by the mental functions, is under obligaplaintiffs in the erection of their tions to the people at large to so conproposed building. The building it- struct its building, and to so create self is one of the most beautiful in an environment with respect to its the country, and, from the stand- own property, as will protect it from point of cost, involved an expendi- the encroachment of fire or other ture of many millions of dollars. natural elements. An open space of From an esthetic and architectural 387 feet between the capitol building standpoint, it stands as the equal, in and the proposed building would apthe minds of many people, of any pear to insure an almost absolute public building in the world. Not protection from the dangers conwithstanding the allegations in de- nected with a conflagration. In fendant's pleadings, it is a fact well nearly all large cities in this counknown that, as a fireproof structure, try, the government and public the capitol building is as riearly in buildings are located in the very vulnerable from the ravages of fire midst of the highly congested areas, as human ingenuity and science can and are surrounded by innumerable build it. It stands in the very center structures of an infinitely greater of a large tract of 15 acres, sur- height than the proposed Piper building. Experience has shown The case of Cochran v. Preston, that only in extremely rare cases supra, in its facts, is far from being have public buildings suffered mate- parallel to the instant case. Under rial loss in large cities where high the act in that case the legislature buildings are located in close prox- restricted the height of buildings imity to them. The great Chicago around what is known as Monument fire and the Baltimore fire can hard- square. The express purpose of the ly furnish a precedent. In the Chi- act involved the protection of the cago area destroyed by the great buildings and monuments in that lofire, the buildings were mostly of cality from damage by fire, by reancient methods of construction, stricting the height of contemplated and were far from fireproof. A buildings.

buildings. We have here, therefore, similar situation was presented in an act which in its very purpose inthe Baltimore fire, that city being volves the reciprocal benefit and one of the oldest of the eastern cities protection of the owners of buildin the country. The attending dan- ings within a specified area. Section ger from fire in the instant case 4444g of the Statutes, as already would be negligible, and as remote stated, is designed solely for the proas a destruction of the capitol build- tection of the capitol building, being ing by an earthquake. Human in the property of the state. But, asgenuity and foresight cannot fore- suming that the Cochran Case, in its stall exigencies so remote and im- facts, presents a situation similar to probable, nor is it within the prov- that in the instant case, we are unince of the police power to provide willing to follow it as a precedent. for such improbabilities.

The act involved in the Cochran We therefore hold that § 4444g of Case was passed immediately after the Statutes constitutes an unrea

the great Baltimore fire. The great sonable exercise of the police power, destruction of property in that conand that the rights attempted to be flagration was largely instrumental acquired under said section can only in bringing about the passage of the be acquired by the exercise of the act. The court in its opinion graphipower of eminent domain, and that cally goes into detail of the ravages the act in question offends against of that fire, and it is quite evident the provisions of the state and Fed- that, under the stress of circumeral Constitutions above referred to. stances, the court was to some ex

We have been able to find no case tent influenced in its decision. involving a situation identical to the Courts are composed of human beone here presented. The learned ings, and however firm may be their attorney general and the special desire to consider principles of law counsel for the state refer to Atty. only, and to rest their decisions soleGen. v. Williams, 178 Mass. 330, 59 ly thereon, they are, after all, mereN. E. 812, commonly known as the ly human agencies. Copley Square Case, and Cochran v. The act in the instant case is not Preston, 108 Md. 220, 23 L.R.A.

in vulnerable from successful attack (N.S.) 1163, 129 Am. St. Rep. 432,

on other constitutional grounds, but 70 Atl. 113, 15 Ann. Cas. 1048. The we will rest our decision upon the act construed in the former case pro

grounds above stated. vided for compensation to the pri

The order of the lower court overvate property owners, and, upon a

ruling the demurrer of the plaintiffs second appeal of the case, the su

is reversed, and the cause is remandpreme court of Massachusetts ex

ed, with instructions to sustain the pressly affirmed its former decision,

demurrer, and for further proceedand construed the act as a proceed- ings according to law. ing under the power of eminent do- Crownhart, J., dissenting: main. This case, therefore, can be The state of Wisconsin, acting more readily cited in support of through its legislature, in 1836, seplaintiffs' contention.

lected Madison as its capital. Madi(180 Wis. 586, 194 N. W. 159.) son then was a wild forest, far from ger it from fire. Land values surcivilization, but possessed of natural rounding the Capitol square have beauties of land and water, attrac- been made by the capitol, and they tively laid by nature for man's domi- will be largely depreciated by anycil. But it is of record that the thing that will mar the beauty of the legislative mind was directed to this setting, or greatly add to the congesplace by a well-organized insistence tion of traffic and interfere with of men in high places, who held the comfort, convenience, and neceslands for speculative purposes. The sities of the people who frequent the location of the capital at Madison, place. Sink the Capitol square in a and later the great State University, pit of darkness, cut off the free cirbringing with them civic pride, edu- culation of air, deface its beauty, encational facilities, art, science, and danger the trees that have taken literature, has given Madison a phe- scores of years to grow, and jeopnomenal advancement, and has in- ardize the building and its invalucreased property values beyond that able records, treasures of art and of any other city of like size in the science, and you have injured all the state.

people of the state, financially, ethiIn 1904, its fine capitol building cally, morally, and as a civic associawas largely destroyed by fire, and tion. These are the facts well then, at a great sacrifice, the state known to the legislature that enactproceeded to the planning and erec- ed the law. The legislature considtion of a new capitol in keeping with ered the greater public welfare, the the spirit of progress in Wisconsin, common good, and, within its police delicately expressed by its motto, power, sought to keep for the future "Forward.” For many years it the state's monument to its civic planned and built, and there result- pride. The petitioners allege that ed from its labors and sacrifices our the building they propose to erect wonderful capitol, known the world will give them a revenue of $35,000 over for its marvelous beauty and greater, annually, than one limited adaptation for the state's needs. It by the legislative act to 90 feet in sits on an eminence in a square, 15. height. It may be reasonably exacre park, adorned with majestic pected that some future business trees, the growth of many years, and will put a like value on sky and air, beautiful shrubbery. The grounds and for the same reason demand the are surrounded by streets. On the undisputed right to go on and up, sides opposite the square are built higher and ever higher, to the great business blocks. Other streets con- danger and detriment of the people verge at the Capitol square, so that of the state. Pointing to the decithe square is a business and ethical sion of this court, they may well center of the city. In the streets claim that all the people are less surrounding the square there is a powerful than a few score of propgreat congestion of traffic. Adding erty holders, who are so fortunate to the height of the buildings facing as to have received the benefit of the the square will aggravate this con- state's munificence, and who long gestion. At the time of the enact for more. ment of the statute in question, not The legal phases of this case demore than one or two buildings had pend upon the constitutionality of exceeded the height limit fixed in the the statute which regulates the statute, and most of them are much height of buildings about the Capitol below that limit. For seventy years square. Two questions presentthe state capitol has been located at ed are: Is the statute an exercise this same spot, and business blocks of the police power? If so, is it a have grown up around the Capitol reasonable exercise of that power? square, and have adjusted them- The contention of the appellant selves so as not to mar its beauty, landowners is that the state has atdeprive it of light and air, or endan- tempted to take their property by

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