City of Salem v. Maynes

The Legislature may, in the exercise of the police power, and for the protection of persons and property against the dangers of fire, authorize cities and towns to restrict or prohibit the erection of wooden buildings within the municipality or any district thereof; and all contracts between individuals are subject to the exercise of this power. A city ordinance, passed under the St. of 1872, c. 243, and providing that a wooden building shall not be built within a certain distance of another wooden building, applies to such a building erected after the ordinance took effect, although, before its passage, work was begun on the cellar upon the site of the proposed building, a contract was made for its erection, and' lumber had been bought and prepared m accordance with the contract.

Bill in equity, filed July 19, 1877, against William Maynes and Henry W. Balcomb, under the St. of 1872, c. 243,* for the removal of a wooden building, alleged to have been erected in violation of an ordinance of the city of Salem, passed on April 23, 1877, establishing the limits of a fire district, within which the building was situated, and providing as follows : “No person shall erect, or cause to be erected, within said district, any wooden building of more than fifteen feet in height from the foundation thereof (which foundation shall not exceed three feet from the level of the street) to the highest point of the roof, and covering an area of more than one thousand square feet of land; provided, that wooden buildings to be used for the purposes of dwelling-houses, not exceeding a height of forty feet above the grade of the street, and not covering an area of more than two thousand square feet of land, may be erected at a distance not less than eight feet from any other wooden building, measuring from wall to wall; and provided also, that any wooden dwelling-house may be erected at a less distance than eight feet from any other wooden building, by constructing the same with brick walls, either at the sides or ends thereof, as the inspector of buildings shall designate.” The case was submitted to this court upon the following facts: On March 19, 1877, the defendant Maynes made a contract in writing with the defendant Balcomb, for the erection of a framed dwelling-house in accordance with certain specifications, by the terms of which Balcomb was to furnish the materials for and erect a portion of the building within eight feet of a wooden building upon adjoining land. The work under the contract was actually begun on March 14, 1877. At the time of the passage of the ordinance, the timber and other material for the building had been purchased by Baloomb, the timber cut to dimension, including that for the end of the building in question, and work had been begun upon the cellar. On May 15, 1877, before the cellar was completed, and before any portion of the superstructure was erected, the inspector of buildings called the attention of the defendants to the ordinance above named, and informed them that measures would be taken to enforce its provisions, and the defendants informed him of the existence of the contract referred to, and insisted upon theiz right to go on. .On June 27, 1S77, notices of their violation of the ordinance were served upon the defendants by the inspector of buildings, at which time the sills and the whole or a portion of the floor had been laid on the part of the building in question. The western wall of a projection or L of the building, as finished, is twenty-two feet high above the foundation, and fifteen and one half feet wide, and stands at the distance of about eleven inches from the building on adjoining land above referred to, and parallel with the eastern side thereof, and is constructed wholly of wood.