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the statute in question without com- in view all of the surrounding cirpensation. This is based upon the cumstances, which will, by its charcommon-law idea that the owner of acter, be so disturbing to his neigha parcel of land not only owns the bors as to injure the enjoyment of surface and the soil beneath to the their property. Cunningham v. center of the earth, but also owns Miller, 178 Wis. 22, 23 A.L.R. 739, the right to build on the surface to 189 N. W. 531. In brief, I believe the sky above. But the rights of the that this court has held, and rightly landowner are subject to the rights so, that one may not use his propof others. Every so-called right, erty so as to injure others, whethwhether of person or property, is

er that injury be communicated relative, and is bounded and circum- through the sense of smell, touch, scribed by the rights of others, ei- hearing, or sight. The injury is the ther as individuals or collectively as evil aimed at, and not the mode of a community or state. The rights its communication. Courts may not to life, liberty, and the pursuit of lose sight of the fact that what may happiness are subject to qualifica- not have been considered injurious tion. They are not absolute. The a generation ago may be so now. right of free speech, guaranteed as With the growth and intensification it is by express language, has been of our civilization has come the need held to be relative. Schenck v. Unit- for handling the problems which ed States, 249 U. S. 48, 63 L. ed. 470, have developed and are developing 39 Sup. Ct. Rep. 247. Why, then, with it. The cases sustaining zonshould a right of the owner of prop- ing of cities

ing of cities are fundamentally erty, claimed under a like instru- based, I believe, upon the recogniment, be absolute? At the common tion by the courts of these problems, law, the lord of the soil could not and the right of the legislature to exercise his property rights so as deal with them. The statute in injure the rights of his neighbors. question is in the same class as zonThe maxims of the common law ap- ing legislation. It aims at the hanplicable are: “Sic utere tuo ut ali- dling of the dangers and evils arisenum non lædas”—so use your own ing from excess congestion in cities. as not to injure another's property. It is an obvious fact, of which any Also: "Sic enim debere quem meli- schoolboy is aware, that high buildorem agrum suum facere, ne vicini ings mean greater hazard from fire, deteriorem faciat”—everyone ought not only to the surrounding propso to improve his land as not to in- erty, but to the inmates of those jure his neighbors. And another: buildings as well; that they bring “Expedit reipublicæ ne sua re quis with them congested street traffic, male utatur"—it is for the interest entailing danger to life and limb; of the state that a man should not that they cut off light and air from use his own property improperly. the surrounding property owners, The law of nuisances illustrates not only making their property less these maxims in a thousand ways. valuable, but, in cases, making the Joyce, Nuisances.

lower parts of it uninhabitable; and The common law, by Constitution, in many cases they offend against is made a part of the law of Wiscon- the sense of sight to such an extent sin except in so far as it is modified as to prevent the reasonable enjoyby the Constitution or statute. Wis.

Wis. ment of the public. Const. § 13, art. 14.

In the instant case the petitioning The owner of land cannot put it to property owners adjoining the Capia use which will raise a stench, or tol square claim the right to build cause a noise, depriving his neigh- their towers of Babel to the sky. bors of the use and enjoyment of These buildings may shut out light their rights. This court has recent and air; they may constitute a serily held that one may not establish ous fire menace to this capitol and upon his premises a business, having city; they may choke the streets (180 Wis. 586, 194 N. W. 159.) around the square with congested the like, as to factory or workshop, , traffic; they may offend against, and why may it not take steps to give even destroy, the beauty and useful- air and sunshine and decent working ness of our great capitol, which the and living conditions for the clerk in people of this state have paid for in an office, or for our wives and chilthe sweat of their brows, and, if it dren at home? There is not a scienpleases these business men to use the tist or physician who does not recogabsolute rights of the soil guaran- nize the relation between clean air teed them by the decision of this and sunshine and good health. Why court, they may build monstrosities not the courts? Are we so wedded thereon of such shape and design as to the past that we may not apprecithey may desire, even placing on the ate a new day until it has passed? tops thereof the golden calf, or Other courts are beginning to apChinese joss. All that is required preciate that the law is adaptable of these lords of the soil is that they to the present, to the reasonable enbuild their temples of Baal, or what joyment of our own lives, as well as not, so that they will be reasonably the enjoyment of a future generasecure from falling on passers-by. tion. In a very recent decision, the "It is possible to hold the disk of the supreme court of Kansas said: dollar so close to our eyes that it “The next contention is that the zonexcludes from sight every object of ing ordinance and the statute which public interest and blinds us to every authorizes it to have the effect of sentiment of humanity,” said a for- taking defendant's property, or of mer great chief justice of this court, diminishing its value without comin Brodhead v. Milwaukee, 19 Wis. pensation.

pensation. It often happens that a 624, 88 Am. Dec. 711.

valid exercise of the police power I cannot consent to a construction has such effect. The most common of the Constitution which so exalts examples of this are found in statprivate rights above public rights. utes and ordinances relating to the I do not concede that the owner of health, safety, or morals of the peoland has any absolute rights therein. ple. With the march of the times, I maintain that the law is settled however, the scope of the legitimate that an owner of land holds his exercise of the police power is not property subject to the reasonable so narrowly restricted by judicial rights of others. And I do not be- interpretation as it used to be. lieve that the constitutionality of There is an esthetic and cultural side the statute need rest upon the nar- of municipal development, which rower grounds of safety and health, may be fostered within reasonable though I think them ample to sus- limitations. See Paola v. Wentz, 79 tain the present statute as an exer- Kan. 148, 152, 153, 131 Am. St. Rep. cise of the police power. If "public 290, 98 Pac. 775; Remington v. welfare" has not done so already, it Walthall, 82 Kan. 234, 31 L.R.A. is high time it took on a meaning for (N.S.) 957, 108 Pac. 112. Such the courts which it has for the rest legislation is merely a liberalized apof the world. There is no reason plication of the general welfare purwhy a judge should painfully bow poses of state and Federal Constituhis back over a lawn mower to tions." Wichita v. Ware, 113 Kan. beautify his front yard, and then 157. 214 Pac. 101. take pen in hand and deny the use The supreme court of Minnesota and sense of the thing. We may recently used this language: “It is well recognize the fact, which sci- time that courts recognize the esence has long known, that health thetic as a factor in life. Beauty and safety are closely related to the and fitness enhance values in public things that give comfort and joy to and private structures. But it is not the mind and soul. If the legislature sufficient that the building is fit and may validly regulate places of em- proper, standing alone; it should alployment, working conditions, and so fit in with surrounding structures to some degree. People are begin- count of conditions that were found ning to realize this more than be- to be oppressive to the people.” fore, and are calling for city plan- American Coal Min. Co. v. Special ning, by which the individual homes Coal & Food Commission, supra. may be segregated from not only in- The decision of the majority in dustrial and mercantile districts, but this case will present, I believe, serialso from the districts devoted to ous obstacles in the way of natural hotels and apartments.” State ex and proper progress. When the rel. Twin City Bldg. & Invest. Co. v. time comes to consider the question Houghton, 144 Minn. 20, 8 A.L.R. of aeroplane traffic and other similar 585, 176 N. W. 162.

problems of our changing civilizaIt is one thing to devest an owner tion, it will prove embarrassing. of his property, and quite another Any such interpretation of the Conto limit, or even prohibit, an unrea- stitution is, in my opinion, erronesonable use

use thereof. Mugler v. ous. It is a mistaken idea of that Kansas, 123 U. S. 623, 31 L. ed. 205, instrument to assume that society 8 Sup. Ct. Rep. 273; Block v. Hirsh, crystallized with its enactment, and 256 U. S. 135, 65 L. ed. 865, 16 that our institutions and rights then A.L.R. 165, 41 Sup. Ct. Rep. 458; in existence froze into unchanging People ex rel. Durham Realty Corp. rigidity. The Constitution is not a v. La Fetra, 230 N. Y. 429, 16 A.L.R. social strait-jacket. The several 152, 130 N. E. 601; Marcus Brown states are sovereign unless some Holding Co. v. Feldman, 256 U. S. constitutional limitation denies that 170, 65 L. ed. 877, 41 Sup. Ct. Rep. power. State ex rel. Carnation Milk 465; American Coal Min. Co. v. Spe- Products Co. v. Emery, 178 Wis. cial Coal & Food Commission (D. 147, 189 N. W. 564; Borgnis v. Falk C.) 268 Fed. 563. In these cases it Co. 147 Wis. 327, 37 L.R.A.(N.S.) is not property which is taken, but 489, 133 N. W. 209, 3 N. C. C. A. the "right to use one's property op

649. “There must be progress, and pressively" or unreasonably. Peo- if in its march private interests are ple ex rel. Durham Realty Corp. v. in the way, they must yield to the La Fetra, 230 N. Y. 429, 16 A.L.R. good of the community." Hada152, 130 N. E. 601. As said by check v. Sebastian, 239 U. S. 394, 60 Judge Baker of the United States L. ed. 348, 36 Sup. Ct. Rep. 143, circuit court of appeals for the sev- Ann. Cas. 1917B, 927. “The politienth circuit: “To my mind there

“To my mind there cal or philosophical aphorism of one are two classes of cases that illus- generation is doubted by the next, trate the right of the state to exer- and entirely discarded by the third ; cise its police power. Over on the the race moves forward constantly, one side fall all of the cases in which and no Canute can stay its progthere is a public franchise, or a ress," said Mr. Chief Justice Winspublic service, or a public utility. low in Borgnis v. Falk Co. supra. Over on that side belong, also, And Mr. Justice Holmes of the innkeepers, along with the car- United States Supreme Court wrote. riers. But there are

to the same effect: “Circumstances cases in which none of these ele

may so change in time ments of a charter, or the power of clothe with such an interest what at eminent domain, or a public service, other times

would be a mator a devotion of property to public ter of purely private concern." use, appears.

These have no Block v. Hirsh, 256 U. S. 135, 65 L. basis at all, except upon the power ed. 865, 16 A.L.R. 165, 41 Sup. Ct. of the people to restrict the thereto- Rep. 458. fore-existing circle in which a per- In his book, "The Spirit of the son had his life, and the one within Common Law," Roscoe Pound says: which he had his liberty, and the one “The conception of law as a means within which he had his property, to toward social ends, the doctrine that bring these down narrower, on ac- law exists to secure interests, social,

as to

(180 Wis. 586, 194 N. W. 159.) public, and individual, requires the greater and more complete than in jurist to keep in touch with life. the instant case. It was not only a Wholly abstract considerations do regulation of use in prospect, but it not suffice to justify legal rules un- regulated a use long existing and in der such a theory. The function of being. But the supreme court of legal history comes to be one of illus- California held that the zoning act trating how rules and principles was a valid exercise of the police have met concrete situations in the power of the state, and its decision past, and of enabling us to judge was upheld by the United States Suhow we may deal with such situa- preme Court in a unanimous decitions in the present, rather than one sion; so the former decisions of the of furnishing self-sufficient premises United States Supreme Court, cited from which rules are to be obtained by the opinion of this court, must be by rigid deduction.” [P. 205.] considered modified or distinguish

If further authority be needed to able from the instant case. The sustain the statute in question, we court, in the Hadacheck Case, said: have it in the highest court in the “The police power and to what exland. Welch v. Swasey, 214 U. S. tent it may be exerted we have re91, 53 L. ed. 923, 29 Sup. Ct. Rep. cently illustrated in Reinman V. 567, affirming People ex rel. Kemp Little Rock, 237 U. S. 171, 59 L. ed. v. D'Oench, 111 N. Y. 359, 18 N. E. 900, 35 Sup. Ct. Rep. 511. The cir862. Also the supreme courts of cumstances of the case were very Massachusetts and Maryland have much like those of the case at bar, sustained similar legislation. Atty.

Atty. and give reply to the contentions of Gen. v. Williams (Knowlton v. Wil- petitioner, especially that which asliams) 174 Mass. 476, 47 L.R.A. serts that a necessary and lawful oc314, 55 N. E. 77, affirmed in Cochran cupation that is not a nuisance per v. Preston, 108 Md. 220, 23 L.R.A. se cannot be made so by legislative (N.S.) 1163, 129 Am. St. Rep. 432, declaration. There was a like in70 Atl. 113, 15 Ann. Cas. 1048. vestment in property, encouraged by That the statute is well within the the then conditions ; a like reduction police power of the state is shown of value and deprivation of property by Hadacheck v. Sebastian, supra; was asserted against the validity of Lincoln Trust Co. v. Williams Bldg. the ordinance there considered; a Corp. 229 N. Y. 313, 128 N. E. 209. like assertion of an arbitrary exerUnless the court can say that no rea- cise of the power of prohibition. sonable man ought to give weight Against all of these contentions, and to such a public policy, then it should causing the rejection of them all, not declare the act unconstitutional. was adduced the police power. Benz v. Kremer, 142 Wis. 1, 26 There was a prohibition of a busiL.R.A.(N.S.) 842, 125 N. W. 99; ness, lawful in itself, there as here. State ex rel. Carnation Milk Prod. It was a livery stable there; a brick ucts Co. v. Emery, supra, and cases yard here. They differ in particthere cited.

ulars, but they are alike in that On the ground of taking private which cause and justify prohibition property without compensation, the in defined localities—that is the efcase of Hadacheck v. Sebastian, su

fect upon the health and comfort of pra, is a complete and convincing the community.” answer. There the plaintiff owned a It is said that the state owns its clay mine for brickmaking purposes. property as any private citizen owns It was formerly outside the city lim- property. This, I think, is hardly its of the city of Los Angeles, but the accurate. The state holds property property, with other property, was as trustee for the public. The annexed to the city, and thus came state's property is affected with a in conflict with the zoning ordinance public interest, for every citizen has of the city. The destruction of an interest in it. It should be noted plaintiff's property values was much in this case that the state has protected the adjacent property of pri- ducement for reciprocal duties on vate citizens from fire, has given the part of adjacent property holdthem spacious grounds for light and ers, to refrain from injury to the air, has given beauty of view and public property of the state. It is enchantment of art and science, by compensation for the statutory relocating its building in the center of quirements imposed. its tract of land, and has surround- For the reasons stated, I respected it with fine trees, shrubs, and fully dissent from the opinion of the flowers. This is a sufficient in- court.


Constitutionality of statute or ordinance limiting height of buildings. I. In general, 46.

Am. St. Rep. 523, 79 N. E. 745, affirmed II. Statutes, 46.

in (1909) 214 U. S. 91, 53 L. ed. 923, III. Ordinances, 49.

29 Sup. Ct. Rep. 567; PIPER v. EKERN

(reported herewith) ante, 32; At1. In general.

kinson v. Piper (Wis.) supra. On the analogous question as to the

And indirectly by municipal ordicreation by statute or ordinance of

nances adopted pursuant to charter restricted residence districts within

authority. State ex rel. Euclid-Doan a municipality, from which business

Bldg. Co. v. Cunningham (1918) 97 buildings are excluded, see annota

Ohio St. 130, L.R.A.1918D, 700, 119 N. tion in 19 A.L.R. 1395, which is sup

E. 361; Bebb v. Jordan (1920) 111 plemented by annotation, ante, 287.

Wash. 73, 9 A.L.R. 1035, 189 Pac. 553; As to constitutionality of building

State ex rel. Sale v. Stahlman (1917) line statutes, see annotation in 12

81 W. Va. 335, L.R.A.1918C, 77, 94 S. A.L.R. 681.

E. 497. There is an obvious difference be

While the regulation of the height tween an attempt to limit the height

of buildings must be reasonable, to of buildings in the exercise of the po

be a valid exercise of the police powlice power, and such an attempt in the

er, a regulation which would be inexercise of the power of eminent valid under the police power may, if domain, which involves compensation

providing for compensation, be upto the owner. With one exception

held as a proper exercise of the power (Atty. Gen. v. Williams (Knowlton v.

of eminent domain. Atty. Gen. v. WilWilliams) (1899) 174 Mass. 476, 47

liams (Mass.) supra. L.R.A. 314, 55 N. E. 77), however, the

And it is, in effect, so stated in the statute involved the exercise of the

reported case (PIPER v. EKERN, ante, police power.

32). The state may, in the exercise of

And intimated in Welch v. Swasey the police power, reasonably regulate,

(1909) 214 U. S. 91, 53 L. ed. 923, 29 either directly, or indirectly by au

Sup. Ct. Rep. 567; Parker V. Com. thorization of the municipalities, the

(1901) 178 Mass. 199, 59 N. E. 634; height of buildings in populous cen

Romar Realty Co. Haddonfield ters, in promotion of the public health

(1921) 96 N. J. L. 117, 114 Atl. 248, and safety. Atkinson v. Piper (1923)

and State ex rel. Sale v. Stahlman 181 Wis. 519, 195 N. W. 544.

(W. Va.) supra. Such regulation may be accomplished directly by statutes. Cochran

II. Statutes, v. Preston (1908) 108 Md. 220, 23 The legislature may limit the height L.R.A.(N.S.) 1163, 129 Am. St. Rep. of buildings in a section of a city 432, 70 Atl. 113, 15 Ann. Cas. 1048; which is devoted to fine residences, Atty. Gen. v. Williams (Mass.) supra public buildings, and works of art, (obiter); Welch v. Swasey (1907) 193 for the purpose of protecting such Mass. 364, 23 L.R.A.(N.S.) 1160, 118 buildings and works from the ravages


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