
    Jaeger v. Topper.
    
      Injunction — Adjoining lot owners — Erection of apartment house — Municipal housing code not violated, when — Outer court or distance from lot line — Easements — Light, air and ventilation — Scope and purpose of housing code.
    
    (No. 16774
    Decided October 18, 1921.)
    Error to the Court of Appeals of Franklin county.
    Frederick Jaeger brought suit against the defendant in error in the court of common pleas of Franklin county seeking to enjoin the erection of a certain building by the defendant, which the petition alleges is being erected in violation of the building code of the city of Columbus, Ohio, to his irreparable injury. The petition is as follows:
    “For his petition herein, plaintiff says that he is the owner of lot No. 86 in Magrew and Floffman’s second amended addition to the city of Columbus, Ohio, as the same is numbered and delineated on the recorded plat thereof, of record in Plat Book No. 2, pp. 200, 201, recorder’s office, Franklin county, Ohio; and that plaintiff is now, and has been for several years last past, using and occupying said propérty, including the residence and other buildings thereon, as a home for himself and family.
    “The defendant, Max M. Topper, is the owner of lot No. 85 in said addition, which, until the changes and alterations hereinafter set forth, were undertaken by the defendant, was occupied, together with the residence and other building's thereon, by defendant as a home for himself and family.
    “The residence so situated on the lot so owned by plaintiff is a single residence. The residence on the lot so owned by defendant was formerly a single residence.
    • “The defendant is proceeding to, and will, unless enjoined by the court, change, alter and add to the dwelling so situated upon the lot so owned by him so as.to make the same a residence or tenement house, as defined by the housing code of the city of Columbus, Ohio, in paragraphs 1 and 2 of Section 2 thereof, the intention of defendant being to so change, alter and enlarge said residence as to make of the same a four apartment residence or tenement house, with the purpose of renting the same, from and after the time such changes, alterations and additions are completed, to at least four families, each occupying one of the apartments so constructed or made out of the dwelling on said property as above described, with additions thereto, as aforesaid.
    “Plaintiff further says that there is an outer court extending from Bryden Road in said city, on which said lots front and abut, along the lot line between the real estate so owned by plaintiff and the real estate so owned by defendant, and back the entire line of the residences situated on said two lots, prior to the date of the attempted alterations of, and additions to his said property by defendant, and which will now extend, if said changes, alterations and additions so being made by defendant are permitted, to the rear of the building now being constructed, or which defendant is intending to construct, on his said property.
    “Plaintiff 'further says that the residence on the property so owned by defendant, and situated thereon, prior to the date defendant attempted to make said alterations, changes and additions, was built prior to the adoption of the present housing code of the city of Columbus, Ohio, within which all.of said property is situated, to wit, prior to the sixth day of March, 1911, and that said dwelling was, when built, situated within one foot, of the east lot line of the premises so owned by defendant. That the court between said two buildings, as above described, did not, and does not now, comply with the provisions of said housing code. That the alterations, changes and additions which defendant is making in and to his said building violate the provisions of said housing code, and are contrary to law, in that:
    “(1) The same violate said housing code in that the building now being constructed by defendant on said real -estate so owned by him,- including the alterations, changes and additions made in and to the old building thereon, will not permit or provide for an outer court six feet or more in width. Plaintiff avers in this connection, that the defendant is constructing, or attempting to construct, a new building on said property (which is an addition to and an extension and enlargement of the old building thereon), in such manner and way that the east wall thereof is within twenty inches of the east line of said lot, instead of six feet, as provided by said housing code.
    
      “(2) The same is in violation of Section 4 of said housing code which provides that:
    “ ‘No tenement house or dwelling house hereafter erected shall at any time be altered so as to be in violation of any provision in this ordinance. And no tenement house or dwelling house erected prior to the passage of this ordinance shall at any time be in violation of those provisions of this ordinance applicable to said tenement house or dwelling house.’
    “(3) The same violates Section 13 of said housing code, which provides that:
    “ ‘The sizes of all courts in tenement houses or dwelling houses hereafter erected shall be proportionate to the height of the building. No court' which is used to provide the lighting and ventilation required by this title shall be less in any part than the minimum sizes prescribed in this section. The minimum width of a court for a tenement house two stories in height shall be ten feet and such width shall increase two feet for each additional story. The minimum width of a court for a dwelling house shall be five feet for a two-story building and such width shall increase one foot for each additional story. The length of an inner court shall never be less than twice the minimum width above described. When a court is located on the lot line a portion of such court, not to exceed one-half, may be located on the abutting premises, provided there'is filed with the county recorder an easement, duly executed and acknowledged by the owner of such abutting premises, binding himself, his heirs, administrators and' assigns, to keep such portion of the adjoining space unbuilt upon and available for light and air as will make the combined courts not less in size than the minimum dimensions prescribed above, or provided such abutting premises has already built upon it and within twelve feet of the lot on which the building is proposed to be erected, a building of permanent character, located such a distance from the lot line as will leave an open court of the minimum dimensions above specified, and this fact be made to appear in the application for permit. When the first floor of a building is used for other than residence purposes, a court therein may start from the floor of the second story, and may be not less than six feet in width if the building is only two stories in height, and two additional feet in width for each additional story. Proper access to the bottom of such court shall be provided and any skylight at the bottom of such court shall be so arranged as to be easily cleaned.’
    “Plaintiff says that the new building now being erected on said lot by defendant does not provide for an outer court as above described, but on the contrary, provides for a court as applied to the old building, on the real estate of defendant, of twenty inches, and for the new building being erected by defendant thereon, of twenty inches, and no more.
    “(4) The same violates Section 15 of said Housing Code, which provides:
    “ ‘No court shall be covered by a roof or skylight, but every court shall be at every point open. from the bottom thereof unobstructed.’
    
      “Plaintiff says. that the new construction or building so planned and contemplated, and now being attempted by, defendant violates said section of said code, in that it extends a cornice over said court, at the top of said building so being constructed by him, and thereby prevents the same, or will prevent the same, from being as required by said section of said housing code.
    “Plaintiff further says that said property, both of plaintiff and defendant, is situated in one of the best residential sections of the city ■ of Columbus, Ohio, and that said section of said city is built up with, and occupied by, residences of the best and highest grade; that if the defendant is permitted to build as above stated, on his said lot, either in the way of erecting new buildings hereon, as he is attempting to do, as above stated, or in changing the ,old dwelling situated on said lot, as he is intending and attempting to do, as above stated, plaintiff’s property will be irreparably damaged, in that it will result in obstructing the court between his said residence and the property of defendant, will shut off the light and air from his said home, will render it less valuable as a place of residence because it will make it darker, improperly ventilated, and less healthful; and will correspondingly damage the value thereof.
    “Plaintiff further says, that he and his predecessors in title in the ownership of the property so owned by him, have never executed and acknowledged an easement as to said open court as provided in Section 13 of said housing code.
    
      “Wherefore, plaintiff prays. that the defendant may be temporarily restrained from building or attempting to build, either by constructing' thereon or by altering the old buildings on said lot, so owned by him, any structure which will violate in any way any of the provisions of said housing code, as above set forth; and that, upon final hearing of this action, he may be permanently enjoined from doing each and all of the things above complained of, and for all other and further relief in the premises.”
    Defendant filed a general demurrer to the petition, which was sustained by the court of common pleas, and judgment was entered for the defendant, dismissing the petition.
    The court of appeals affirmed this judgment, and this proceeding is brought to reverse the judgments below.
    
      Messrs. Huggins & Liggett, for plaintiff in error.
    
      Messrs. Pugh & Pugh and Mr. Eugene Morgan, for defendant in error.
   By the Court.

The petition shows that the plaintiff and defendant are the owners of adjoining lots in Columbus; that on these lots are single residences occupied by the parties respectively; that the defendant is proceeding to alter his residence so as to make it a tenement house,of four apartments to be rented by the defendant to at least four families; that there is an outer court, extending from Bryden Road, on which the properties front, along the lot line between the plaintiff and the defendant for the entire line of the residences situated on said two lots, and the defendant proposes to extend his building to the rear for the purposes stated; and that the defendant’s present dwelling when built was situated within one foot of the east line of defendant’s premises.

It is alleged that the court between the two buildings, as above described, did not and does not now comply with the provisions of the said housing code. It is alleged that the additions which the defendant is making violate the provisions, of the housing code in that they will not permit or provide for an outer court six feet or more in width and that his new building will be within twenty inches of the east line of his lot instead of six feet as provided by the code.

It will be observed that the plaintiff predicates his right to relief solely upon the housing code.

He avers that defendant’s wall and building will obstruct the space between the two houses of the parties and will shut off the light and air from plaintiff’s home and render it less valuable as a place of residence because it will make it darker, improperly ventilated and less healthful. There is no claim that the plaintiff has any easement of any sort in the property of the defendant.

As we view the ca’se, the allegations of the petition concerning the provisions of the housing code, and the portions of the code set forth in the petition, fail to disclose that the object of the code was to require the owner in erecting a structure upon his own land to so build it as to furnish light, air or other facilities to the owner of the adjoining lot. It seems to be clear that the purpose of the code was to make provisions concerning the erection of tenement houses for the benefit of ' those who .occupy them. We find no indication of a purpose to fix an affirmative duty upon the owner of one lot to use it for the affirmative benefit of the owner of another lot.

The provisions of this code are manifestly made .for the purpose of securing to the occupants of a building being erected the largest amount of light, air and safety consistent with the economic use and disposition of the property by the owner. That it was not the intention of the council of the city in drafting the code to arbitrarily confer rights upon adjoining property owners is clearly indicated by the provisions of Section 13, which are set forth in the petition. It is there provided that “When a court is located on the lot line a portion of such court, not to exceed one-half, may be located on the abutting premises, provided there is filed with the county recorder an easement, duly executed and acknowledged by the owner of such abutting premises, binding himself, his heirs, administrators and assigns, to keep such portion of the adjoining space unbuilt upon and available for light and air as will make the combined courts not less in size than the minimum dimensions prescribed.”

This is a clear indication that the code itself recognized that in order that one property owner may acquire easements or rights in property of his adjoining property owner there must be a regularly executed and acknowledged instrument to that effect by such owner.

The petition in this case alleges that neither the plaintiff himself nor his predecessor in title ever executed or acknowledged an easement as to said open court, as provided in Section 13 of the housing code. This would appear to indicate that the plaintiff denies to defendant the rights and easements under the housing code in plaintiff’s property which plaintiff claims in defendant’s property by reason of the same code. It may also be observed that Section 13 itself seems to recognize that the court may be an inner’ court, and that in such case, if the inner court provided air and light for the entire tenement house, an outer court would not he required. After providing for £he length of an inner, court, Section 13 contains the provision “When a court is located on the lot line a portion of such court,” etc.

It is familiar law that every man is permitted to do what he will with his own property if he uses it without purpose to injure his neighbor, and does not trespass upon another’s property rights or use it in such manner as to create-a nuisance. And the legislative authority may adopt such reasonable regulations as to the use of property as may be deemed necessary to the public health, safety and welfare, and to prevent nuisance.

It was held in Leis v. Cleveland Railway Co., 101 Ohio St., 162: “Rights of property cannot be taken away or interfered with without due process of law.”

This proposition is of course elementary.

The case of State, ex rel., v. Cunningham, 97 Ohio St., 130, is cited by the plaintiff in error, in support of his contentions. In that case the plaintiff owned a five-story building in Cleveland. He. desired to procure a permit to use the fifth story for tenement purposes. The city commission refused the permit, and he brought a proceeding in mandamus to compel its issuance. The building code had prohibited the erection thereafter of non-fireproof tenement houses to a height above three stories. This court held that the plaintiff was not entitled to the writ, because the provision regulating the tenement house was a proper exercise of the police power. The provision in that case was made in the interest of those who expected to occupy the building itself, and was a provision made for the safety of those occupants. The ordinance did not purport to confer rights or privileges except upon those who were expecting to occupy the property concerned.

We think the judgments of the lower courts should be affirmed.

Judgments affirmed.

Johnson, Hough, Wanamaker, Robinson, Jones and Matthias, JJ., concur.  