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Subject Area: Law
Topic: The American Revolution and Constitution

§ 150.: Laws regulating the construction of buildings in cities.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 150.

Laws regulating the construction of buildings in cities.—

In years gone by, a man was at liberty to build his house or other building as he pleased, and of what he pleased. He could imitate the example of the Biblical wise man, and build it upon a rock; or, foolishly following the precedent of the foolish man, he could build it upon the sand; and no government official could interpose an objection. But this individualistic license no longer is permitted. Public opinion recognizes the indubitable fact that the builder of the house or other structure is not the only one who is interested in the character and method of its construction. Public opinion requires that the government should exercise its powers of supervision over the construction of every building, in order to guard not only the owner, but the possible tenants and occupants, as well as the public in general, against unsound and insecure construction, and unsanitary conditions. Building laws are now enacted and enforced in all of the larger cities. The foundations must be of the required depth and strength; the walls must be of the required thickness, and made of the approved materials; the plumbing must be constructed according to the approved plans; and, in certain kinds of buildings, all the known and reasonable means for making the structure so-called fire-proof must be employed. These regulations have frequently been contested; but the principle, that it is within the police power to regulate the construction of buildings, for the promotion of the health, comfort and safety of the people, has never been questioned or doubted by any court. In the few cases, in which a building regulation has been declared void, it has been so held, because under the circumstances of the particular case the regulation was deemed to be unreasonable or unnecessary.

A most vigorous opposition was made in recent years to a law of the city of New York, which required the owners of tenement houses to furnish a supply of water on every floor. The Court of Appeals, however, reversing the judgment of the lower court, held it to be only a reasonable regulation, in the promotion of the health of the occupants of the tenements, which was not made unreasonable by the fact that the expense of the improvement was not warranted by the low rental, which the occupants were able to pay.1 Tenement houses are held to fall peculiarly within the sphere of police regulations, which are designed to promote the health and safety of the tenants, as well as of the public. Indeed, it has been held that a tenement is devoted to a quasi-public use which, under the principle of the case of Munn v. Illinois, enlarges the regulative powers of the government.1

Along the same line was a decision of the Supreme Court of Massachusetts, which held a regulation to be valid which required all water-closets to be connected with the public sewer, and provided that all buildings, in which people live or are employed, should have water-closets, constructed in accordance with the statutory requirements.2

It is now a very common requirement of tall buildings, that fire-escapes should be provided, other than the ordinary stairways. The regulation has been ordinarily acquiesced in, if not generally complied with. In one case, in which the validity of the regulation was contested, it was sustained as a reasonable exercise of police power.3

The disposition to construct inordinately tall buildings seems to be growing; every new building of the kind, known as skyscrapers, seeming to reach a higher altitude than the preceding ones. Streets, of a width, sufficient for the construction of three and four story buildings, become narrow and poorly ventilated alleys, when rows of buildings line them with their eighteen to twenty-three stories. Unless the height of such buildings is limited by law, there will be no other limit to the height of future structures; and both the health and safety of the population will be endangered. There can be no doubt of the constitutionality of a law which limits the height of buildings; and so has the New York Court of Appeals decided.4

But the public health or safety must be endangered, in order to justify legislative restriction upon the character of buildings. Regulations, which are designed only to enforce upon the people the legislative conceptions of artistic beauty and symmetry, will not be sustained, however much such regulations may be needed for the artistic education of the people. Thus, for example, a State law, which required all buildings to conform to a prescribed building line, was held to be unconstitutional.1

For obvious reasons, it is a constitutional exercise of the police power to prohibit the removal of buildings upon or across any street or highway, without a prior permit of a city or town government.2

Another great danger, which threatens all thickly settled communities, is that of more or less extensive conflagrations, resulting from accidental fires. Every house, everywhere, is subject in a greater or less degree to the danger of destruction by fire; but it is only when the buildings are closely built, that the danger of fire being communicated from an adjoining building becomes great enough to call for special regulations for preventing the spread of such accidental fires. The danger of destruction by fire is least when the buildings are constructed of more or less non-combustible material. It would probably be considered unreasonable to require all buildings to be absolutely fire-proof,3 but it is a common regulation in the large cities to prohibit the erection of wooden buildings, or of buildings with wooden, or shingle roofs. This regulation has often been subjected to judicial criticism, but the constitutionality of it has invariably been sustained.4 The increase in the danger of a general conflagration, resulting from the construction of wooden buildings in the heart of a large city, furnishes ample justification for the regulation.

But the proprietor has the right to erect on his lands whatever kind of buildings or other structures he may please, provided he does not, in doing so, threaten, or do, harm to others; and, as long as he does not put others in danger, he may even set fire to his own house, without committing any punishable wrong.1 While, therefore, it is lawful for the State to prohibit the erection of wooden buildings in thickly settled communities, because of the danger of fire, it would certainly not be lawful to apply the same regulation to suburban and country property, on which the buildings are far apart; for the danger of a general conflagration is reduced to so low a minimum, that, if the danger existed at all, it could not be appreciably increased by the erection of wooden buildings.

In California, a county ordinance, regulating the construction of asylums for the insane, required inter alia, that the building should be fire-proof, and composed of brick or stone, and that the grounds to which the patients should be accessible be surrounded by a brick wall, eighteen inches thick and twelve feet high. These requirements were held to be unconstitutional as an arbitrary exercise of the police power.1

Party walls are so common as the result of the mutual agreement of adjoining proprietors, that at first thought a law, which provided for the universal use as a party wall of one which is placed partly on each of the adjoining tracts of land, would not appear to be so unreasonable. Yet, there can be no question of the soundness of the judgment of the court in declaring such a law as an unconstitutional interference with the right of property of the adjoining proprietor, who did not consent to the construction of the party wall. The statute which was declared void in this case, provided that every person, building with brick or stone in the city of Boston, shall have the right to set half of his partition or party wall on the adjoining lot, and that when the adjoining proprietor builds upon his lot, he shall be required to pay to the constructor of the party wall the half of the expense, to the extent to which he shall make use of the wall.2

Somewhat akin to regulations of the construction of buildings, are the regulations which require and control the construction of fences. Fences are required in cities and towns, in order to secure privacy and the accurate determination of boundary lines; while in the country, the confinement of the cattle is the chief reason. Ordinarily, the requirements of a fence are so reasonable that there is no disposition to resist the enforcement of the regulation. There are, however, a few interesting cases, in which fence regulations have been resisted. For example, in Massachusetts, a statute was held to be reasonable which required the destruction as a nuisance of any fence, which exceeded six feet in height, which has been maliciously erected or maintained for the purpose of annoying the occupants of adjoining property.1 It has also been held to be reasonable to prohibit in the construction of fences the use of any but smooth wire.2

A curious regulation of fences is found in Texas, which prohibits the construction of a continuous fence for more than three miles, without providing a gateway of the kind specified in the statute. Inasmuch as the requirement of such a gateway was to enable the public to cross the private property of one, the regulation was justly held to be repugnant to the constitution of Texas.3

The regulations, in regard to fences in the country, vary in different places. In some States and counties, where the agricultural interests are predominant, and the cattle-raising industry is small, the owners of cattle are required to fence their cattle; while the owners of agricultural lands are not required to incur the enormous expense of fencing in their tilled fields. Where, however, the cattle industry is predominant or very strong, the disposition is generally shown to require the fields to be fenced in, while the cattle is permitted to roam at large. Where there is such a conflict of interests, it is manifestly within the power of the legislature to determine on whom the burden of maintaining fences shall be imposed. And the courts have no power ordinarily to control or overrule the legislative determination. And the logical deduction would be that where the relative weights of the agricultural and cattle interests change, the legislature may change the existing requirements as to fencing, and transfer the burden from one interest to the other, according as the highest interests of the community may best be promoted. But a recent case from one of the inferior Federal courts holds that any such change of policy, in regard to fencing of lands in the country, would be a taking of the property of the one, upon whom the burden of fencing was freshly imposed, in violation of the Federal Constitution.1 I doubt whether this decision can be accepted as the settled opinion of the Federal courts.

In the construction of buildings nowadays, a serious and dangerous nuisance is suffered from the blasting of rock with explosive compounds. An ordinance of Boston prohibited such use of explosives within the city limits, and the ordinance was sustained as a reasonable exercise of police power.2

[1]Health Department of City of New York v. Rector, etc., of Trinity Church, 145 N. Y. 32.

[1]See Matter of Paul, 94 N. Y. 497; People v. King, 110 N. Y. 418; People v. Budd, 117 N. Y. 1; s. c. 143 U. S. 517.

[2]Commonwealth v. Roberts, 155 Mass. 281.

[3]City of Cincinnati v. Steinkamp, 54 Ohio St. 284.

[4]People v. D’Oench, 111 N. Y. 359.

[1]City of St. Louis v. Hill, 116 Mo. 527.

[2]Wilson v. Eureka City, 173 U. S. 32.

[3]See Ex parte Whitwell, 98 Cal. 73, more fully explained, post, same section.

[4]See Wadleigh v. Gilman, 12 Me. 403; Welch v. Hotchkiss, 39 Conn. 144; Vanderbelt v. Adams, 7 Cow. 349; Corp. of Knoxville v. Bird, 12 Lea, 121 (47 Am. Rep. 326); Ex parte Fiske, 72 Cal. 125; Matter of City of Brooklyn, 87 Hun, 54; Klinger v. Bickel, 117 Pa. St. 326; King v. Davenport, 98 Ill. 305. In the California case, the city ordinance provided that “no wooden building within the fire limit shall be altered, changed or repaired without permission of the fire wardens, etc. In the New York case in Hun’s report, the regulation provided for the removal of a wooden building which had been erected in violation of the law; but the court held that this cannot be done without first giving the owner notice of the intended order of removal. In the case of Knoxvill v. Bird, a city ordinance, prohibiting the erection of wooden buildings, was sustained in its application to cases, in which a contract for the construction of the building was made before the passage of the ordinance, and remained unexecuted; the passage of the law against the erection of such buildings made illegal all contracts for their construction, and released all parties to the contracts from the obligations thereby assumed. But in the City of Buffalo v. Chadeayne, 134 N. Y. 163, it was held that where a person had, under a permit to erect frame buildings within the fire limits, granted by the proper authorities, made contracts and incurred liabilities in reliance upon such permit, the city cannot rescind such permit, without violating rights of property, which are under the protection of the constitution. See Cordes v. Miller, 39 Mich. 581 (33 Am. Rep. 330).

[1]Bloss v. Tobey, 2 Pick. 320; Hennesey v. People, 21 How. Pr. 239.

[1]Ex parte Whitwell, 98 Cal. 73.

[2]Wilkins v. Jewett, 139 Mass. 29.

[1]Rideout v. Knox, 148 Mass. 368.

[2]Commonwealth v. Barrett (Ky.), 17 S. W. 336.

[3]Dilworth v. State (Tex. Cr. Rep.), 36 S. W. 274.

[1]Smith v. Bivens, 56 Fed. 352.

[2]Commonwealth v. Parks, 155 Mass. 531.