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the statute in question without compensation. This is based upon the common-law idea that the owner of a parcel of land not only owns the surface and the soil beneath to the center of the earth, but also owns the right to build on the surface to the sky above. But the rights of the landowner are subject to the rights of others. Every so-called right, whether of person or property, is relative, and is bounded and circumscribed by the rights of others, either as individuals or collectively as a community or state. The rights to life, liberty, and the pursuit of happiness are subject to qualification. They are not absolute. The right of free speech, guaranteed as it is by express language, has been held to be relative. Schenck v. United States, 249 U. S. 48, 63 L. ed. 470, 39 Sup. Ct. Rep. 247. Why, then, should a right of the owner of property, claimed under a like instrument, be absolute? At the common law, the lord of the soil could not exercise his property rights so as to injure the rights of his neighbors. The maxims of the common law applicable are: "Sic utere tuo ut alienum non lædas"-so use your own as not to injure another's property. Also: "Sic enim debere quem meliorem agrum suum facere, ne vicini deteriorem faciat"-everyone ought so to improve his land as not to injure his neighbors. And another: "Expedit reipublicæ ne sua re quis male utatur"-it is for the interest of the state that a man should not use his own property improperly. The law of nuisances illustrates these maxims in a thousand ways. Joyce, Nuisances.

The common law, by Constitution, is made a part of the law of Wisconsin except in so far as it is modified by the Constitution or statute. Wis. Const. § 13, art. 14.

The owner of land cannot put it to a use which will raise a stench, or cause a noise, depriving his neighbors of the use and enjoyment of their rights. This court has recently held that one may not establish upon his premises a business, having

in view all of the surrounding circumstances, which will, by its character, be so disturbing to his neighbors as to injure the enjoyment of their property. Cunningham v. Miller, 178 Wis. 22, 23 A.L.R. 739, 189 N. W. 531. In brief, I believe that this court has held, and rightly so, that one may not use his property so as to injure others, whether that injury be communicated through the sense of smell, touch, hearing, or sight. The injury is the evil aimed at, and not the mode of its communication. Courts may not lose sight of the fact that what may not have been considered injurious a generation ago may be so now. With the growth and intensification of our civilization has come the need for handling the problems which have developed and are developing with it. The cases sustaining zoning of cities are fundamentally based, I believe, upon the recognition by the courts of these problems, and the right of the legislature to deal with them. The statute in question is in the same class as zoning legislation. It aims at the handling of the dangers and evils arising from excess congestion in cities. It is an obvious fact, of which any schoolboy is aware, that high buildings mean greater hazard from fire, not only to the surrounding property, but to the inmates of those buildings as well; that they bring with them congested street traffic, entailing danger to life and limb; that they cut off light and air from the surrounding property owners, not only making their property less valuable, but, in cases, making the lower parts of it uninhabitable; and in many cases they offend against the sense of sight to such an extent as to prevent the reasonable enjoyment of the public.

In the instant case the petitioning property owners adjoining the Capitol square claim the right to build their towers of Babel to the sky. These buildings may shut out light and air; they may constitute a serious fire menace to this capitol and city; they may choke the streets

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

around the square with congested traffic; they may offend against, and even destroy, the beauty and usefulness of our great capitol, which the people of this state have paid for in the sweat of their brows, and, if it pleases these business men to use the absolute rights of the soil guaranteed them by the decision of this court, they may build monstrosities thereon of such shape and design as they may desire, even placing on the tops thereof the golden calf, or Chinese joss. All that is required of these lords of the soil is that they build their temples of Baal, or what not, so that they will be reasonably secure from falling on passers-by. "It is possible to hold the disk of the dollar so close to our eyes that it excludes from sight every object of public interest and blinds us to every sentiment of humanity," said a former great chief justice of this court, in Brodhead v. Milwaukee, 19 Wis. 624, 88 Am. Dec. 711.

I cannot consent to a construction of the Constitution which so exalts private rights above public rights. I do not concede that the owner of land has any absolute rights therein. I maintain that the law is settled that an owner of land holds his property subject to the reasonable rights of others. And I do not believe that the constitutionality of the statute need rest upon the narrower grounds of safety and health, though I think them ample to sustain the present statute as an exercise of the police power. If "public welfare" has not done so already, it is high time it took on a meaning for the courts which it has for the rest of the world. There is no reason why a judge should painfully bow his back over a lawn mower to beautify his front yard, and then take pen in hand and deny the use and sense of the thing. We may We may well recognize the fact, which science has long known, that health and safety are closely related to the things that give comfort and joy to the mind and soul. If the legislature may validly regulate places of employment, working conditions, and

the like, as to factory or workshop, why may it not take steps to give air and sunshine and decent working and living conditions for the clerk in an office, or for our wives and children at home? There is not a scientist or physician who does not recognize the relation between clean air and sunshine and good health. Why not the courts? Are we so wedded to the past that we may not appreciate a new day until it has passed?

Other courts are beginning to appreciate that the law is adaptable to the present, to the reasonable enjoyment of our own lives, as well as the enjoyment of a future generation. In a very recent decision, the supreme court of Kansas said: "The next contention is that the zoning ordinance and the statute which authorizes it to have the effect of taking defendant's property, or of diminishing its value without compensation. It often happens that a valid exercise of the police power has such effect. The most common examples of this are found in statutes and ordinances relating to the health, safety, or morals of the people. With the march of the times, however, the scope of the legitimate exercise of the police power is not so narrowly restricted by judicial interpretation as it used to be. There is an esthetic and cultural side of municipal development, which may be fostered within reasonable limitations. See Paola v. Wentz, 79 Kan. 148, 152, 153, 131 Am. St. Rep. 290, 98 Pac. 775; Remington v. Walthall, 82 Kan. 234, 31 L.R.A. (N.S.) 957, 108 Pac. 112. legislation is merely a liberalized application of the general welfare purposes of state and Federal Constitutions." Wichita v. Ware, 113 Kan. 157, 214 Pac. 101.

Such

The supreme court of Minnesota recently used this language: "It is time that courts recognize the esthetic as a factor in life. Beauty and fitness enhance values in public and private structures. But it is not sufficient that the building is fit and proper, standing alone; it should also fit in with surrounding structures

to some degree. People are beginning to realize this more than before, and are calling for city planning, by which the individual homes may be segregated from not only industrial and mercantile districts, but also from the districts devoted to hotels and apartments." State ex rel. Twin City Bldg. & Invest. Co. v. Houghton, 144 Minn. 20, 8 A.L.R. 585, 176 N. W. 162.

It is one thing to devest an owner of his property, and quite another to limit, or even prohibit, an unreasonable use thereof. Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Block v. Hirsh, 256 U. S. 135, 65 L. ed. 865, 16 A.L.R. 165, 41 Sup. Ct. Rep. 458; People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429, 16 A.L.R. 152, 130 N. E. 601; Marcus Brown Holding Co. v. Feldman, 256 U. S. 170, 65 L. ed. 877, 41 Sup. Ct. Rep. 465; American Coal Min. Co. v. Special Coal & Food Commission (D. C.) 268 Fed. 563. In these cases it is not property which is taken, but the "right to use one's property oppressively" or unreasonably. People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429, 16 A.L.R. 152, 130 N. E. 601. As said by Judge Baker of the United States circuit court of appeals for the seventh circuit: "To my mind there are two classes of cases that illustrate the right of the state to exercise its police power. Over on the one side fall all of the cases in which there is a public franchise, or a public service, or a public utility. Over on that side belong, also, innkeepers, along with the carriers.

But there are . cases in which none of these elements of a charter, or the power of eminent domain, or a public service, or a devotion of property to public use, appears. These have no basis at all, except upon the power of the people to restrict the theretofore-existing circle in which a person had his life, and the one within which he had his liberty, and the one within which he had his property, to bring these down narrower, on ac

count of conditions that were found to be oppressive to the people." American Coal Min. Co. v. Special Coal & Food Commission, supra.

The decision of the majority in this case will present, I believe, serious obstacles in the way of natural and proper progress. When the time comes to consider the question of aeroplane traffic and other similar problems of our changing civilization, it will prove embarrassing. Any such interpretation of the Constitution is, in my opinion, erroneous. It is a mistaken idea of that instrument to assume that society crystallized with its enactment, and that our institutions and rights then in existence froze into unchanging rigidity. The Constitution is not a social strait-jacket. The several states are sovereign unless some constitutional limitation denies that power. State ex rel. Carnation Milk Products Co. v. Emery, 178 Wis. 147, 189 N. W. 564; Borgnis v. Falk Co. 147 Wis. 327, 37 L.R.A. (N.S.) 489, 133 N. W. 209, 3 N. C. C. A. 649. "There must be progress, and if in its march private interests are in the way, they must yield to the good of the community." Hadacheck v. Sebastian, 239 U. S. 394, 60 L. ed. 348, 36 Sup. Ct. Rep. 143, Ann. Cas. 1917B, 927. "The political or philosophical aphorism of one generation is doubted by the next, and entirely discarded by the third; the race moves forward constantly, and no Canute can stay its progress," said Mr. Chief Justice Winslow in Borgnis v. Falk Co. supra.

And Mr. Justice Holmes of the United States Supreme Court wrote. to the same effect: "Circumstances may so change in time . . . as to clothe with such an interest what at other times .would be a matter of purely private concern." Block v. Hirsh, 256 U. S. 135, 65 L. ed. 865, 16 A.L.R. 165, 41 Sup. Ct. Rep. 458.

In his book, "The Spirit of the Common Law," Roscoe Pound says: "The conception of law as a means toward social ends, the doctrine that law exists to secure interests, social,

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

public, and individual, requires the jurist to keep in touch with life. Wholly abstract considerations do not suffice to justify legal rules under such a theory. The function of legal history comes to be one of illustrating how rules and principles have met concrete situations in the past, and of enabling us to judge how we may deal with such situations in the present, rather than one of furnishing self-sufficient premises from which rules are to be obtained by rigid deduction." [P. 205.]

If further authority be needed to sustain the statute in question, we have it in the highest court in the land. Welch v. Swasey, 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567, affirming People ex rel. Kemp v. D'Oench, 111 N. Y. 359, 18 N. E. 862. Also the supreme courts of Massachusetts and Maryland have sustained similar legislation. Atty. Gen. v. Williams (Knowlton v. Williams) 174 Mass. 476, 47 L.R.A. 314, 55 N. E. 77, affirmed in 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. That the statute is well within the police power of the state is shown by Hadacheck v. Sebastian, supra; Lincoln Trust Co. v. Williams Bldg. Corp. 229 N. Y. 313, 128 N. E. 209. Unless the court can say that no reasonable man ought to give weight to such a public policy, then it should not declare the act unconstitutional. Benz v. Kremer, 142 Wis. 1, 26 L.R.A. (N.S.) 842, 125 N. W. 99; State ex rel. Carnation Milk Products Co. v. Emery, supra, and cases there cited.

On the ground of taking private property without compensation, the case of Hadacheck v. Sebastian, supra, is a complete and convincing answer. There the plaintiff owned a clay mine for brickmaking purposes. It was formerly outside the city limits of the city of Los Angeles, but the property, with other property, was annexed to the city, and thus came in conflict with the zoning ordinance of the city. The destruction of plaintiff's property values was much

The

greater and more complete than in the instant case. It was not only a regulation of use in prospect, but it regulated a use long existing and in being. But the supreme court of California held that the zoning act was a valid exercise of the police power of the state, and its decision was upheld by the United States Supreme Court in a unanimous decision; so the former decisions of the United States Supreme Court, cited by the opinion of this court, must be considered modified or distinguishable from the instant case. court, in the Hadacheck Case, said: "The police power and to what extent it may be exerted we have recently illustrated in Reinman v. Little Rock, 237 U. S. 171, 59 L. ed. 900, 35 Sup. Ct. Rep. 511. The circumstances of the case were very much like those of the case at bar, and give reply to the contentions of petitioner, especially that which asserts that a necessary and lawful occupation that is not a nuisance per se cannot be made so by legislative declaration. There was a like investment in property, encouraged by the then conditions; a like reduction of value and deprivation of property was asserted against the validity of the ordinance there considered; a like assertion of an arbitrary exercise of the power of prohibition. Against all of these contentions, and causing the rejection of them all, was adduced the police power. There was a prohibition of a business, lawful in itself, there as here. It was a livery stable there; a brick yard here. They differ in particulars, but they are alike in that which cause and justify prohibition in defined localities-that is the effect upon the health and comfort of the community."

It is said that the state owns its property as any private citizen owns property. This, I think, is hardly accurate. The state holds property as trustee for the public. The state's property is affected with a public interest, for every citizen has an interest in it. It should be noted in this case that the state has pro

tected the adjacent property of private citizens from fire, has given them spacious grounds for light and air, has given beauty of view and enchantment of art and science, by locating its building in the center of its tract of land, and has surrounded it with fine trees, shrubs, and flowers. This is a sufficient in

ducement for reciprocal duties on the part of adjacent property holders, to refrain from injury to the public property of the state. It is compensation for the statutory requirements imposed.

For the reasons stated, I respectfully dissent from the opinion of the court.

ANNOTATION.

Constitutionality of statute or ordinance limiting height of buildings.

I. In general, 46.

II. Statutes, 46.

III. Ordinances, 49.

1. In general.

On the analogous question as to the creation by statute or ordinance of restricted residence districts within a municipality, from which business buildings are excluded, see annotation in 19 A.L.R. 1395, which is supplemented by annotation, ante, 287.

As to constitutionality of building line statutes, see annotation in 12 A.L.R. 681.

There is an obvious difference between an attempt to limit the height of buildings in the exercise of the police power, and such an attempt in the exercise of the power of eminent domain, which involves compensation to the owner. With one exception (Atty. Gen. v. Williams (Knowlton v. Williams) (1899) 174 Mass. 476, 47 L.R.A. 314, 55 N. E. 77), however, the statute involved the exercise of the police power.

The state may, in the exercise of the police power, reasonably regulate, either directly, or indirectly by authorization of the municipalities, the height of buildings in populous centers, in promotion of the public health and safety. Atkinson v. Piper (1923) 181 Wis. 519, 195 N. W. 544.

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Am. St. Rep. 523, 79 N. E. 745, affirmed in (1909) 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567; PIPER V. EKERN (reported herewith) ante, 32; Atkinson v. Piper (Wis.) supra.

And indirectly by municipal ordinances adopted pursuant to charter authority. State ex rel. Euclid-Doan Bldg. Co. v. Cunningham (1918) 97 Ohio St. 130, L.R.A.1918D, 700, 119 N. E. 361; Bebb v. Jordan (1920) 111 Wash. 73, 9 A.L.R. 1035, 189 Pac. 553; State ex rel. Sale v. Stahlman (1917) 81 W. Va. 335, L.R.A.1918C, 77, 94 S. E. 497.

While the regulation of the height of buildings must be reasonable, to be a valid exercise of the police power, a regulation which would be invalid under the police power may, if providing for compensation, be upheld as a proper exercise of the power of eminent domain. Atty. Gen. v. Williams (Mass.) supra.

And it is, in effect, so stated in the reported case (PIPER V. EKERN, ante, 32).

And intimated in Welch v. Swasey (1909) 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567; Parker v. Com. (1901) 178 Mass. 199, 59 N. E. 634; Romar Realty Co. V. Haddonfield (1921) 96 N. J. L. 117, 114 Atl. 248, and State ex rel. Sale v. Stahlman (W. Va.) supra.

II. Statutes.

The legislature may limit the height of buildings in a section of a city which is devoted to fine residences, public buildings, and works of art, for the purpose of protecting such buildings and works from the ravages

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