ÆäÀÌÁö À̹ÌÁö
PDF
ePub

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

legislature and relieve it from the objection that its action is partial and unequal. The same rule is provided for all, to be applied only where, from the surrounding circumstances, there is the same exposure. Com. v. Alger, 7 Cush. 53; Baker v. Boston, 12 Pick. 184, 22 Am. Dec. 421; . Coates v. See New York, 7 Cow. 585, 604." See also Welch v. Swasey, 193 Mass. 365, 23 L.R.A. (N.S.) 1160, 118 Am. St. Rep. 523, 79 N. E. 745.

The owner's right in property, when unrestricted, extends not only downward under the surface to an unlimited extent, but also upwards, and the latter right, Real property- from common expeextent upward. rience, would

apÎn

pear to be the more valuable. large cities, in congested business areas, the value of property consists almost exclusively in the right of the owner to erect business and industrial structures thereon, and the well-defined distinction appears from the authorities that the unrestrictable right in such localities to

Buildings

-right to con

build to a considerable height is greatstruct buildings. er than in residential districts. Such rule seems to follow from the necessity arising out of the situation. Welch v. Swasey, supra. Without such right to erect buildings to considerable height upon business areas, the ownership of property therein would become more a liability than an asset.

As is said in Com. ex rel. Keator v. Clear View Coal Co. 256 Pa. 328, 331, L.R.A.1917E, 672, 100 Atl. 820: "For practical purposes, the right to coal consists in the right to mine it." And, as is said in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 67 L. ed. 322, 28 A.L.R. 1321, 43 Sup. Ct. Rep. 158: "What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect, for constitutional purposes, as appropriating or destroying it."

As the value of the ownership of

erty-taking.

coal or mineral lands consists in the right to mine it, so the value of business property in a business district in a city consists in the right to use the property for business purposes, and any unreasonable police regulations restricting such right, in substance, amounts to the taking of private property Constitutional for a public use, law-restrictwithout compensa- ing use of proption. True, in one sense, such a restriction under the police power does not transfer property from the private owner to the public, as is the case where the power of eminent domain is exercised; nevertheless such restriction may be of such a nature as to practically accomplish the same result, and the distinction, as above indicated, with reference to the two methods sanctioned for the taking or restricting of the private right for the public use is often but technical.

taking.

It has also been held that any regulation which deprives any person of the profitable Eminent domain use of his property -regulation as constitutes a taking of property, and entitles him under the Constitution to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power. Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557; United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Edwards v. Bruorton, 184 Mass. 529, 69 N. E. 328; Hutton v. Camden, 39 N. J. L. 122, 23 Am. Rep. 203.

In Pennsylvania Coal Co. v. Mahon, supra, which involved the constitutionality of the so-called Kohler Act (P. L. 1921, 1198), forbidding the mining of anthracite coal so as to cause the subsidence of certain buildings and places, it was held that such act cannot be sustained as an exercise of the police power, so far as it affects the mining of coal under streets or cities, in places where the right to mine such coal has been reserved, and it is said: "The general

rule, at least, is that, while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. It may be doubted how far exceptional cases, like the blowing up of a house to stop a conflagration, go; and, if they go beyond the general rule, whether they do not stand as much upon tradition as upon principle. Bowditch v. Boston, 101 U. S. 16, 25 L. ed. 980. In general, it is not plain that a man's misfortunes or necessities will justify his shifting the damages to his neighbor's shoulders. Spade v. Lynn & B. R. Co. 172 Mass. 488, 489, 43 L.R.A. 832, 70 Am. St. Rep. 298, 52 N. E. 747, 5 Am. Neg. Rep. 367. We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already have said, this is a question of degree, and, therefore, cannot be disposed of by general propositions."

The opinion in the Pennsylvania Coal Company Case states that the facts in that case go beyond anything reported in the books. The act was declared unconstitutional by the Supreme Court of the United States, as being in violation of the contract clause and due process clause of the Federal Constitution.

Whatever may be our opinion as to whether the Pennsylvania Coal Company Case above referred to, in its facts, is extreme, we are convinced, however, that the facts in the instant case far exceed it, from the standpoint of an infraction of private rights. Not 1 square foot of private property for the Capitol square could be acquired for the purposes of the state without resorting to the power of eminent domain, nor could a single item of material be obtained by the state for the construction of the building without making proper compensation therefor. The necessity for the acquiring of property on which to build a state capitol in which are to be performed the governmental functions of the

state is great, and it is readily conceded that a proper building is necessary for such a purpose. It has also been deemed necessary, in order to provide a heating system for the state capitol, to construct a heating plant some considerable distance from the building, so as to avoid both danger from explosion and fire. Nevertheless, no one can contend that real property could be taken for this purpose without due compensation, nor could the right be acquired to construct a tunnel under private property, connecting the capitol with such plant, in order to enable such heating plant to furnish heat for the capitol, without acquiring the necessary easement under the soil of the owners of private property, pursuant to the power of eminent domain.

The public school system is guaranteed by the Constitution, and it cannot be contended to the contrary that there is anything more essential and necessary to promote the general welfare and to maintain our democratic system of government than the establishment and maintenance of such system. Nevertheless every inch of property, when acquired for such school purposes from private owners, must be taken under the power of eminent domain and compensated for. The same may be said of public hospitals and other similar institutions.

To deprive the plaintiffs, for the purposes stated in the act, of their right to erect the

height of build

property.

proposed building at -limiting the height contem- ings to prevent plated, substantially hazard to state amounts to a taking of their property right above a certain height limit. It is conceded in the answer of the defendant that the restriction included in the act not only materially affects the value of plaintiffs' proposed building, but also of the real estate. It would be useless to otherwise contend. Such restriction practically amounts to the granting of an easement over and above the 90-foot height provided for in the act, for the benefit of

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

the state and its capitol, and such easement does not differ materially from the easement required for the tunnel to insure the connection of the heating plant with the capitol; and the counsel for the defendant admit that the latter is properly the subject of acquirement by the power of eminent domain. If such easement underground must be obtained by condemnation, then, is there any reason why the state, in order to protect its interests, should not resort to a similar proceeding to acquire what amounts to an easement above the surface of plaintiffs' property?

The government of this great state, representing the ideals of its citizens on the subject of a democratic form of government, cannot afford, under the guise of a police regulation, to acquire rights to private property, as is attempted by the act in the instant case, unless, under the Constitution, it is willing to make proper compensation therefor. This act is not designed to promote the public welfare of the private owners of property abutting upon the Capitol square. It is solely based upon a selfish motive, and is confined to the protection from fire of the state's property. The state owns this property as any private citizen owns property. It constructed the capitol building, with its vaulting dome, to a height far beyond anything contemplated by the plaintiffs in the erection of their proposed building. The building itself is one of the most beautiful in the country, and, from the standpoint of cost, involved an expenditure of many millions of dollars. From an esthetic and architectural standpoint, it stands as the equal, in the minds of many people, of any public building in the world. Not withstanding the allegations in defendant's pleadings, it is a fact well known that, as a fireproof structure, the capitol building is as nearly invulnerable from the ravages of fire as human ingenuity and science can build it. It stands in the very center of a large tract of 15 acres, sur

rounded by the principal business interests of the city of Madison. It contains records of inestimable value, necessary to the proper performance of the governmental functions of the state. This state has been taught and has learned a valuable lesson in the construction of a state capitol, for the former capitol was destroyed by fire, and the necessity for a fireproof building has thus been forcibly impressed upon the minds of the legislators, and they have profited by the lesson. What there is about the building and its contents that is destructible by fire communicated from buildings abutting the square, with the exception of certain books and records, which could only be reached by a conflagration in an extraordinary catastrophe, is beyond the imagination. It is argued by counsel for the state that without the building and its contents the governmental functions would not only be greatly hampered, but to a large extent destroyed. No conflagration, unless it be political in its nature, can destroy the government, as was demonstrated by the former fire of our capitol building. There is a very marked distinction between the instrumentalities used in the performance of governmental functions, and the functions themselves. tions themselves. The former are mere property interests, and the state, while exercising its governmental functions, is under obligations to the people at large to so construct its building, and to so create an environment with respect to its own property, as will protect it from the encroachment of fire or other natural elements. An open space of 387 feet between the capitol building and the proposed building would appear to insure an almost absolute protection from the dangers connected with a conflagration. In nearly all large cities in this country, the government and public buildings are located in the very midst of the highly congested areas, and are surrounded by innumerable structures of an infinitely greater height than the proposed Piper

A

building. Experience has shown that only in extremely rare cases have public buildings suffered material loss in large cities where high buildings are located in close proximity to them. The great Chicago fire and the Baltimore fire can hardly furnish a precedent. In the Chicago area destroyed by the great fire, the buildings were mostly of ancient methods of construction, and were far from fireproof. similar situation was presented in the Baltimore fire, that city being one of the oldest of the eastern cities in the country. The attending danger from fire in the instant case would be negligible, and as remote as a destruction of the capitol building by an earthquake. Human ingenuity and foresight cannot forestall exigencies so remote and improbable, nor is it within the province of the police power to provide for such improbabilities.

We therefore hold that § 4444g of the Statutes constitutes an unreasonable exercise of the police power, and that the rights attempted to be acquired under said section can only be acquired by the exercise of the power of eminent domain, and that the act in question offends against the provisions of the state and Federal Constitutions above referred to.

We have been able to find no case involving a situation identical to the one here presented. The learned attorney general and the special counsel for the state refer to Atty. Gen. v. Williams, 178 Mass. 330, 59 N. E. 812, commonly known as the Copley Square Case, and Cochran v. Preston, 108 Md. 220, 23 L.R.A. (N.S.) 1163, 129 Am. St. Rep. 432, 70 Atl. 113, 15 Ann. Cas. 1048. The act construed in the former case provided for compensation to the private property owners, and, upon a second appeal of the case, the supreme court of Massachusetts expressly affirmed its former decision, and construed the act as a proceeding under the power of eminent domain. This case, therefore, can be more readily cited in support of plaintiffs' contention.

The case of Cochran v. Preston, supra, in its facts, is far from being parallel to the instant case. Under

the act in that case the legislature restricted the height of buildings around what is known as Monument square. The express purpose of the act involved the protection of the buildings and monuments in that locality from damage by fire, by restricting the height of contemplated buildings. We have here, therefore, an act which in its very purpose involves the reciprocal benefit and protection of the owners of buildings within a specified area. Section 4444g of the Statutes, as already stated, is designed solely for the protection of the capitol building, being the property of the state. But, assuming that the Cochran Case, in its facts, presents a situation similar to that in the instant case, we are unwilling to follow it as a precedent. The act involved in the Cochran Case was passed immediately after the great Baltimore fire. The great destruction of property in that conflagration was largely instrumental in bringing about the passage of the act. The court in its opinion graphically goes into detail of the ravages of that fire, and it is quite evident that, under the stress of circumstances, the court was to some extent influenced in its decision. Courts are composed of human beings, and however firm may be their desire to consider principles of law only, and to rest their decisions solely thereon, they are, after all, merely human agencies.

The act in the instant case is not invulnerable from successful attack on other constitutional grounds, but we will rest our decision upon the grounds above stated.

The order of the lower court overruling the demurrer of the plaintiffs is reversed, and the cause is remanded, with instructions to sustain the demurrer, and for further proceedings according to law.

Crownhart, J., dissenting:

The state of Wisconsin, acting through its legislature, in 1836, selected Madison as its capital. Madi

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

son then was a wild forest, far from civilization, but possessed of natural beauties of land and water, attractively laid by nature for man's domicil. But it is of record that the legislative mind was directed to this place by a well-organized insistence of men in high places, who held lands for speculative purposes. The location of the capital at Madison, and later the great State University, bringing with them civic pride, educational facilities, art, science, and literature, has given Madison a phenomenal advancement, and has increased property values beyond that of any other city of like size in the state.

In 1904, its fine capitol building was largely destroyed by fire, and then, at a great sacrifice, the state proceeded to the planning and erection of a new capitol in keeping with the spirit of progress in Wisconsin, delicately expressed by its motto, "Forward." For many years it planned and built, and there resulted from its labors and sacrifices our wonderful capitol, known the world over for its marvelous beauty and adaptation for the state's needs. It sits on an eminence in a square, 15acre park, adorned with majestic trees, the growth of many years, and beautiful shrubbery. The grounds are surrounded by streets. On the sides opposite the square are built business blocks. Other streets converge at the Capitol square, so that the square is a business and ethical center of the city. In the streets surrounding the square there is a great congestion of traffic. Adding to the height of the buildings facing the square will aggravate this congestion. At the time of the enactment of the statute in question, not more than one or two buildings had exceeded the height limit fixed in the statute, and most of them are much below that limit. For seventy years the state capitol has been located at this same spot, and business blocks have grown up around the Capitol square, and have adjusted themselves so as not to mar its beauty, deprive it of light and air, or endan

ger it from fire. Land values surrounding the Capitol square have been made by the capitol, and they will be largely depreciated by anything that will mar the beauty of the setting, or greatly add to the congestion of traffic and interfere with the comfort, convenience, and necessities of the people who frequent the place. Sink the Capitol square in a pit of darkness, cut off the free circulation of air, deface its beauty, endanger the trees that have taken scores of years to grow, and jeopardize the building and its invaluable records, treasures of art and science, and you have injured all the people of the state, financially, ethically, morally, and as a civic association. These are the facts well known to the legislature that enacted the law. The legislature considered the greater public welfare, the common good, and, within its police power, sought to keep for the future the state's monument to its civic pride. The petitioners allege that the building they propose to erect will give them a revenue of $35,000 greater, annually, than one limited by the legislative act to 90 feet in height. It may be reasonably expected that some future business will put a like value on sky and air, and for the same reason demand the undisputed right to go on and up, higher and ever higher, to the great danger and detriment of the people of the state. Pointing to the decision of this court, they may well claim that all the people are less powerful than a few score of property holders, who are so fortunate as to have received the benefit of the state's munificence, and who long for more.

The legal phases of this case depend upon the constitutionality of the statute which regulates the height of buildings about the Capitol square. Two questions presented are: Is the statute an exercise of the police power? If so, is it a reasonable exercise of that power?

The contention of the appellant landowners is that the state has attempted to take their property by

« ÀÌÀü°è¼Ó »