Holland v. Auburn, 161 Wash. 594, 297 Pac. 733 (1931).

      [No. 22832. Department One. April 2, 1931.]
      ANDREW J. HOLLAND, Respondent, v. THE CITY OF
                AUBURN, Appellant. 1

[1] MUNICIPAL CORPORATIONS (426) - SIDEWALKS - SNOW AND ICE -
NEGLIGENCE. A City is liable for want of reasonable care in
allowing ice to accumulate and remain on the sidewalk and
become rounded up or uneven so as to be dangerous and likely
to injure persons exercising ordinary care and prudence.

[2] SAME (434, 435) - NOTICE OF DEFECT - CONSTRUCTIVE
N0TICE - TIME OF EXISTENCE. An accumulation of an uneven mound
of ice upon a much used sidewalk in the principal business
block of a city of the third class for a period of six or
seven days is sufficient to give the officials constructive
notice of the obstruction.

[3] SAME (440, 469) - CONTRIBUTORY NEGLIGENCE OF PERSON
INJURED - QUESTION FOR JURY. A man eighty years of age
who slipped upon a mound of transparent ice on the
sidewalk, was not guilty of contributory negligence, as a
matter of law, where he was walking along in the usual and
ordinary manner in which he would walk.

Appeal from a judgment of the superior court for
King county, Kuykendall, J., entered June 10, 1930,
upon the verdict of a jury rendered in favor of the
plaintiff, in an action for personal injuries sustained
through a defective sidewalk. Affirmed.

Charles A. Cave and John T. Hunt, for appellant.

Jno. Mills Day, for respondent.


1 Reported in 297 Pac. 769.

                     HOLLAND v. AUBURN.               595
 Apr. 1931               Opinion Per MAIN, J.

MAIN

MAIN, J. - This action was brought to recover damages
for personal injuries. The defendant city denied
liability, and affirmatively pleaded contributory
negligence on the part of the plaintiff. The cause was tried
to the court and a jury. At the conclusion of the
plaintiff's evidence, the defendant challenged the sufficiency
thereof, and moved for a dismissal, which motion was
denied. At the conclusion of all of the evidence, the
challenge was renewed and again denied. The jury
returned a verdict in favor of the plaintiff in the sum
of two thousand dollars. The defendant moved for
judgment notwithstanding the verdict, and in the alternative
for a new trial, both of which motions were
overruled. Judgment upon the verdict was entered,
from which the defendant appeals.

The accident out of which the litigation arose happened
in the city of Auburn, a municipal corporation
of the third class, on the south side of West Main street
between Division street south and A street southwest,
which was in the business section of the city, either.
side of Main street between the two cross streets mentioned
being completely built up with business houses.
On the south side of Main street, a little more than half
the distance from Division street on the east to A
street on the west, there is a space of two and one-half
or three feet between two of the buildings.

Some days prior to the date mentioned, snow had
fallen, and the temperature for a number of days had
remained below normal. In front of the business
houses, so far as practical, the snow had been cleared
from the sidewalk. The thawing of the snow on the
roof of one of the buildings, which did not come closely
in contact with the building adjacent to it, caused water
to drop onto the sidewalk at a point approximately in
front of the opening between the two buildings, and,
as it dropped, it froze, resulting in a "mound" or

 596    HOLLAND v. AUBURN.
                Opinion Per MAIN, J.           161 Wash.

"hummock" being formed over a layer of snow
beneath. Owing to the transparency of the ice and the
snow beneath, the mound or hummock was not readily
discernible by one passing along the sidewalk. There
was evidence from which the jury had a right to find
that the mound or hummock was from two to four
inches high, and that it had been on the sidewalk for a
period of several days or a week.

The respondent, a man a little more than eighty
years of age, at about eleven o'clock in the forenoon of
the day mentioned, while walking in a westerly direction
on West Main street between the two cross streets
mentioned, stepped upon the mound or hummock of
ice, not knowing it was there, slipped and fell, sustaining
a serious injury, as the result of which he was
in a hospital for a period of fifty-five days.

The case was submitted to the jury by instructions
about which there is no complaint, and there is no
contention that the verdict was excessive.

[1] The first question is whether the appellant was
negligent in permitting the mound or hummock above
mentioned to form and remain for an unreasonable
length of time. A city is not ordinarily liable for an
accident occasioned by mere slipperiness caused by ice
or snow upon a sidewalk, but it is liable if the ice or
snow becomes so rough and uneven, or so rounded up
as to make an obstruction, and cause it to be unsafe for
travel with the exercise of ordinary care, if such
obstruction. is permitted to remain for an unreasonable
length of time in view of all the circumstances. Piper
v. Spokane,
22 Wash. 147, 60 Pac. 138 ; Wren v. Seattle,
100 Wash. 67, 170 Pac. 342, 3 A. L. R. 1123. In Smith
v. Spokane, 16 Wash. 403, 47 Pac. 888, it was held that
where an accumulation of snow and ice upon a
sidewalk had become rough, uneven and rounded up to
such an extent that it was dangerous for persons

                HOLLAND v. AUBURN.                597
 Apr. 1931          Opinion Per MAIN, J.

passing over it, it constituted an obstruction to travel which
it was the duty of the city to remove, and anyone injured
thereby, while in the exercise of ordinary care
and prudence, was entitled to damages from the city.
In Murray v. Spokane,
117 Wash. 401, 201 Pac. 745, it
was said:

"The conditions described by the evidence, the jury
was at liberty to accept, were more than mere
slipperiness caused by ice on the sidewalk. There is evidence
that the ice at the particular place was uneven and
rounded upon the sidewalk that inclined both ways, so
as to make it an obstruction and cause it to be unsafe
for travel with the exercise of reasonable care. The
conditions were such as to. fall within the rule laid
down in Calder v. Walla Walla, 6 Wash. 377, 33 Pac.
1054, which has been reaffirmed in subsequent cases.
Smith v. Spokane, 16 Wash. 403, 47 Pac. 888; Piper v.
Spokane, 22 Wash. 147, 60 Pac. 138; and Wren v. Seattle,
100 Wash. 67, 170 Pac. 342. Nor does the fact
that the water which partly formed the ice came from
the adjoining premises and that there may have been
alternate thawing and freezing relieve the city in this
case, since the testimony shows that for a month or
more the ice never entirely melted."

Two of the witnesses called by the respondent in the
present case testified that the condition of the place in
question was "dangerous," and another stated that it
was a "bad spot." The trial court, in a memorandum
opinion, with reference to the matter stated:

"The obstruction consisted of a conical layer of ice
over snow, and. according to some of the defendant's
witnesses was somewhat deceptive in appearance. To
an ordinary observer the spot would not appear much
different from other portions of the walk covering with
snow owing to the transparency of the icy capping."

In view of the facts as they appeared in the testimony
offered by the respondent, and the law which is
applicable to a situation of this kind, it cannot be held

 598    HOLLAND v. AUBURN.
                     Opinion Per MAIN, J.           161 Wash.

as a matter of law that the appellant was not negligent.
It is true that as to the extent of the mound and the
condition of the sidewalk, the evidence offered by the
respective parties is in conflict. The question was one
for the jury.

[2] The next question is whether, under all the circumstances,
the obstruction had been permitted to remain
for an unreasonable time. The place where the
accident occurred, as above stated, was in the business
section of the city, and in close proximity to the center
of that section. It was on a sidewalk over which it was
convenient to pass, going from the city hall to the
post office. The jury had a right to find that the obstruction
had been there for a period of six or seven days. An
Officer of the appellant city, whose duty it was to notify
property owners to clear the sidewalk of snow in front
of their respective properties, testified, as a witness
for the appellant, that in the performance of his duties
he passed several times a day along the sidewalk where
the accident occurred.

It was not necessary that the appellant have actual
notice of the obstruction; constructive notice was
sufficient. If the obstruction was permitted to remain for
an unreasonable length of time, constructive notice
would be imputed to the city. In Sutton v Snohomish,
11 Wash. 24, 39 Pac. 273, 48 Am. St. 847, it was said:
"It is not necessary in such cases that actual notice be
shown. Constructive notice is sufficient." In Born v.
Spokane, 27 Wash. 719, 68 Pac. 386, it was said:

"Hence the instruction complained of, that a city is
chargeable with notice of a dangerous opening and
trench or ditch, and its condition, in the sidewalk or
street, although actual notice may not have been
brought home to it, if the evidence shows that such a
state has continued for sufficient length of time, so that
the city by exercising ordinary care, might have
learned of its condition, and not to know such fact

                HOLLAND v. AUBURN.                599
 Apr. 1931          Opinion Per MAIN, J.

would be negligence on the part of the city, was properly
given."

In this case, the question of whether the obstruction
had been permitted to remain for a sufficient length of
time in order that the city would be charged with notice
thereof, was for the jury to determine in view of all
the attendant circumstances.

[3] The next question is whether the respondent
was guilty of contributory negligence as a matter of
law. The contention that he was so guilty is based, to
some extent, upon his own testimony in which he was,
apparently, perfectly frank and honest. In part he
said:

"As I walked along Main street, traveling from east
to west, approaching the point where I fell, as to
whether or not I was watching where I was walking
on the sidewalk, I reckon I wasn't watching much. A
wolf watches where he puts every foot, but I can't.
As to whether I was observing where I was walking
just before and at the time I fell, I was not observing
very particularly, I don't reckon.

"I guess that I was going along the walk observing
where I was going as I usually do in my daily walks
and life, and using the same care and doing what I
usually do in walking along."

A lady, who at the time of the accident was walking
west on the south side of Main street, and who had
observed respondent, she being a short distance behind
him, testified: "He was walking apparently very
carefully, and he was walking more to one side." When
the respondent's testimony is read in its entirety, it
means nothing more than that respondent was walking
along the street in the usual and ordinary manner in
which he would walk. It cannot be held, under the
evidence, that the respondent was guilty of contributory
negligence as a matter of law.

Upon all of the questions mentioned, the case was

 600    STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.
                Statement of Case.           161 Wash.

properly submitted to the jury, and their verdict is
controlling upon the facts.

In support of its motion for a new trial, the appellant
makes a number of contentions, all of which we
have considered, and in none of which do we find substantial
merit. These questions being largely technical,
it does not appear to us that any of them are of
sufficient moment to require a detailed discussion.

The judgment will be affirmed.

TOLMAN, C. J., PARKER, MITCHELL, and HOLCOMB, JJ.,
concur.

      [No. 22524. Department One. April 20 1931.]
THE STATE OF WASHINGTON, on the Relation of Modern
           Lumber & Millwork Company, Appellant,
           v. I. G. MacDUFF, Respondent. 1

[1] MUNICIPAL CORPORATIONS (320, 325) - EMINENT DOMAIN
(65)POLICE POWER - INTERFERENCE WITH BUSINESS - BUILDING
PERMITS - ZONING ORDINANCES - TAKING PROPERTY WITHOUT
COMPENSATION. Tacoma Zoning Ordinance No. 9147, 18, as
amended by ordinance No. 10382, prohibiting retail lumber
yards in a residential district, does not warrant the refusal
of a permit to replace buildings destroyed by fire to enable a
concern antedating the zoning ordinance to continue its
pre-existing business of a retail lumber shop and yard; since
the restrictions of a zoning ordinance must bear a substantial
relation to the public health, safety, morals or general
welfare, which is not the case;
and enforcement of the ordinance would be a inking of
property without compensation.

Appeal from a judgment of the superior court for
Pierce county, Card, J., entered March 11, 1930, upon
findings in favor of the defendant, in mandamus


1 Reported in 297 Pac. 733.

      STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.      601
 Apr. 1931          Opinion Per MILLARD, J.

proceedings to compel the issuance of a building permit,
tried to the court. Reversed.

Hayden, Langhorne & Metzger, for appellant.

E. K. Murray, Leo Teats, and Bartlett Rummel, for
respondent.

MILLARD-Opinion

MILLARD, J. - Lots 1 to 12, inclusive, of block 11 of
Alliance Addition, owned by the Modern Lumber &
Millwork Company, comprise the half block on the
east side of Cushman avenue and extend between south
Eleventh and south Twelfth streets in the city of
Tacoma. For approximately sixteen years, the lumber
company and its immediate predecessor in interest
have occupied all of the twelve lots and conducted
thereon a store for the sale at retail of lumber, plaster
board, roofing paper, paints, hardware, and other
building supplies. The southerly half (lots 7 to 12,
inclusive) of the property was devoted to the open
storage of lumber, with two small buildings (originally
dry kilns) also used for storage. The northerly half
(lots 1 to 6, inclusive) of the property was improved
with various buildings used as office and sales room,
warehouse and factory. In the factory building was
installed machinery used in manufacturing sash and
doors and finished cabinet work. Such use by the
lumber company of its premises antedated any form
of zoning ordinance of the city of Tacoma.

Ordinance No. 8136, known as the "Building Code,"
was passed by the city council April 9, 1924. It provides
for the structural requirements of buildings proposed
to be erected, and that no building may be constructed
without a building permit. The ordinance imposes
on the building inspector the duty to receive applications
for and to issue such permits. Section
eighteen of the ordinance establishes as a residence

 602    STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.
                Opinion Per MILLARD, J.           161 Wash.

district all of the city except such portions as are
within fire districts thereby or thereafter established,
and except such portions as may have been theretofore
or may be thereafter otherwise excepted. Paragraph
two of section eighteen reads as follows:

"It shall be unlawful for any person, firm or corporation
to erect, establish, maintain, carry on or operate
within any residential district herein defined, any
business enterprise except as provided in paragraph 4 of
this section."

By the provisions of paragraph three, it is made unlawful
to establish, maintain or operate certain businesses,
which from their nature are recognized as being
nuisances per se, except in a prescribed limited
area. Paragraph four provides that

"This ordinance is not intended to prohibit the
operation of any business, except those mentioned in
paragraph 3, which is now being operated, or to prohibit
the establishment and operation of any business, except
those mentioned in said paragraph 3, in any residential
section when the person desiring to establish
the same shall have, within sixty days prior thereto,
obtained the consent in writing of owners representing
at least three-fourths of the property within a radius
of 300 feet of a central point of the structure to be
erected as designated on plans that must be filed with
the Building Inspector at the time of filing petition.
And no permit for the erection or alteration of any
building to be used for the purpose of conducting any
of said businesses therein shall be issued until such
consent shall have been so filed."

The city adopted a general zoning plan by the passage
on April 6, 1927, of ordinance No. 9147. That ordinance
created in the city of Tacoma two manufacturing
districts, thirteen retail districts, and the remainder of
the city was designated as a residential district. Retail
district No. 13, established by that ordinance, includes
the one-half block on either side of south Eleventh

      STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.      603
 Apr. 1931               Opinion Per MILLARD, J.

street from "K" street to Sprague street and embraces
the north six lots (lots 7 to 12, inclusive) of the
lumber company's property; that portion on which
were located the office, sales room, warehouse and
woodworking factory. The lumber company's lots 1
to 6, inclusive, lie in the residential district. That is,
while the lumber company's property constitutes a
single solid tract of twelve lots, and was used as a
whole in the business, the property was by the zoning
ordinance cut in two, and one-half placed in a residential
district and the other half placed in a retail
district.

The uses to which real property within the retail
districts may be put, as defined by section 18 of the
zoning ordinance, are:

"1. Any use permitted in the residential district.
2. Store, wholesale or retail. 3. Office, business or
professional. 4. Bank. 5. Restaurant. 6. Service
station. 7. Printing establishment. 8. Telephone exchange
or telegraph office. 9. Theater, dance hall,
skating rink, or other commercial amusement place if
not located within 500 feet of the property line of any
park, school or playground. 10. Retail trade or shop
for custom work or the making of articles to be sold at
retail on the premises. 11. Public garages. 12. Public
repair shops. 13. Hand laundry, clothes cleaning and
pressing. 14. Manufacturing clearly incidental to a
retail business lawfully conducted on the premises.
The use of the real property within said Retail Districts
for any purpose other than the above is hereby
prohibited."

Section 20 of the zoning ordinance provides:

"The lawful use of a building or premises existing
at the time of the adoption of this ordinance but not
conforming to the provisions for the use district within
which it is located may continue, provided that no
structural alterations are made except such as the
Building Inspector shall deem necessary for the safety
of the building.

 604    STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.
                Opinion Per MILLARD, J.           161 Wash.

"Any building remaining vacant for a continuous
period of more than one year shall not again be reoccupied
except by a conforming use.

"A non-conforming use shall not be changed except
for a conforming use.

"The non-conforming use of a fractional part of a
building or lot shall not be extended to occupy a
greater part of the building or lot than that occupied
at the time this ordinance became effective, except that
a non-conforming use may be extended to that portion
of the building which was arranged or designed for
such non-conforming use at the time of the passage of
this ordinance."

On January 16, 1930, the buildings on the north six
lots, which are in the retail district, were destroyed by
fire. On January 30, 1930, the lumber company applied
to the city building inspector for a permit to construct
a building on the said six lots, to be used as a
retail store for the sale at retail of lumber, paints, oils,
hardware, plaster board, roofing paper, and other
building materials and supplies, and as a warehouse
for the storage of the stock in trade, including lumber.
That is, the lumber company applied for a permit to
construct a building wholly in a retail district to enable
it to continue in the use theretofore made of the
premises, but eliminated therefrom all woodworking or
other machinery. The building inspector refused to
issue the permit, informing the applicant that no
building permit would be issued by his office for the erection
of a building to be used for the storage of lumber, as
detailed in the plans submitted.

The lumber company brought an action against the
building inspector, and obtained the issuance of an
alternative writ of mandate, returnable February 6,
1930. On February 3, 1930, three days prior to the
return day, the city council passed ordinance No. 10382,
amending SS 18 of the zoning ordinance No. 9147 to

      STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.      605
 Apr. 1931          Opinion Per MILLARD, J.

read as follows, the italicized portion being the added
proviso:

"10. Retail trade or shop for custom work or the
making of articles to be sold at retail on the premises;
provided this shall not be construed as including retail
lumber yards and wood yards."

Upon his return to the alternative writ, the building
inspector justified his refusal of a permit upon the
ground that there was not a proper application therefor,
and that said amendatory ordinance No. 10382
prohibited the building sought to be erected. The trial
court concluded that the building inspector's refusal
to consider the lumber company's application for a
permit, "and the denial of a building permit was arbitrary,
capricious, and without any just, valid, or legal
reason or excuse therefor, and in violation of the duty
enjoined upon him by the ordinance of the city of Tacoma."
But the court held that the amendatory ordinance
No. 10382 was a valid exercise of the police
power of the city; that, as that ordinance prohibited
lumber yards in retail districts, the lumber company
was not entitled to the permit sought. Judgment was
entered dismissing the action. The relator has appealed.

It is contended that the building for which the permit
is sought is reasonably necessary for the continuance
of appellant's business, and neither it nor the
use proposed to be made thereof will constitute a nuisance
or be detrimental to the public health, safety,
morals, or general welfare of the community; that
appellant's business is lawful in itself, and was lawfully
instituted, therefore it may continue and rebuild,
enlarge or expand despite the ordinances above mentioned.

Respondent insists that the appellant was not entitled
to a permit, as the issuance thereof for the

 606    STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.
                Opinion Per MILLARD, J.           161 Wash.

building which the appellant sought to construct would have
been in violation of zoning ordinance No. 9147, as
amended by ordinance No. 10382. That is to say, while
appellant's business was lawful it constituted a non-conforming
use which was permitted under the zoning
ordinance so long as it did not increase or expand, or
require the rebuilding or replacement of any of the
structures in which such business was conducted.

"So long as municipal bodies confine their enactments
providing for the regulation and control of property
privately owned, within the proper limit of their
police powers, they do not violate the property rights
of the individual. The limit imposed is that the regulations
or requirements, whatever they may be, must
be reasonable, and not arbitrary, and have for their
object the preservation of the public health, safety,
morals or general welfare." 43 C. J. 415.

[1] That the proposed building and use are not inconsistent
with public health, safety, morals, or general
welfare clearly appears. The building will house
no machinery to produce noise or dust or shavings,
and will contain no burner or furnace to emit smoke or
cinders. No obnoxious fumes or odors will emanate
from the building. The only objection to the proposed
structure is that lumber will be stored therein for
retail trade. The use to which the building will be put
was a lawful use immediately prior to the passage of
ordinance No. 9147, the zoning ordinance. That ordinance
provided that such use existing at the time of
the adoption of the ordinance, while not conforming to
the provisions for the use district within which it was
located, could continue.

"The lawful use of a building or premises existing
at the time of the adoption of this ordinance, but not
conforming to the provisions for the use district within
which it is located may continue."

      STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.      607
 Apr. 1931              Opinion Per MILLARD, J.

Such non-conforming use, the ordinance provided,
could not be changed, however, except for a conforming
use. That is, while the non-conforming use could
be continued, the ordinance did not authorize one non-conforming
use or business to be succeeded by another,
following the discontinuance of the former, where such
succeeding business could not, subsequent to the enactment
of the ordinance, be originally established
there; although it might have been lawfully conducted
there prior to the enactment of the ordinance.

"A regulation providing that in any building or
premises any lawful use existing therein at the time of
the passage of the regulation may be continued,
though not conforming to the regulations, does not
authorize the conducting of another business which
might prior to the enactment of the regulation have
been lawfully conducted in such building, although it
could not, subsequent to the enactment be originally
established there." 43 C. J. 358.

By ordinance No. 10382, zoning ordinance No. 9147
was amended to include in the list of non-conforming
uses the business in which appellant has been engaged
for years, the use to which it would put the building
for which it applied for a building permit. That, insists
respondent, authorizes the refusal of the permit.
It will be remembered that the building to be erected
will be located on the one-half of the appellant's tract
of land which is within the retail district. The other
half is within the residential district. The entire tract
is used for the lumber business. The effect of the
enforcement of the amendatory ordinance would be to
prevent the continuance of appellant's business on
one-half of his property. The restriction imposed does
not bear a substantial relation to the public health,
safety, morals, or general welfare, and the enforcement
of the ordinance would be the taking of property
without compensation.

 608    STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.
                Opinion Per MILLARD, J.                161 Wash.

In Liberty Lumber Co. v. Tacoma, 142 Wash. 377, 253 Pac. 122,
a lumber company had conducted its business in a residential
district for a number of years. Subsequent to the enactment of
an ordinance prohibiting the establishment and operation
of that business within that district, the company
purchased two lots adjoining the land on which its
business was located, and attempted to erect thereon
a lumber shed. The city building inspector ordered
the work on the building stopped, whereupon an action
was instituted by the lumber company to enjoin the inspector.
We held that the city could not by ordinance
restrict the use to which the company was putting its
property; that the city could not prevent the expansion
of an existing business or the extension of an
established use to other property acquired after the
attempted restriction had become effective and to
which the restriction in terms applied.

In In re Gilfillan's Permit, 291 Pa. St. 358, 140 Atl.
136, it was held that the city was unauthorized under
zoning ordinance to refuse a permit to a retail lumber
dealer to erect cement block storage building, where
the line separating the residential and business districts
ran through the lot on which his business was
conducted, the additional construction not being
detrimental to public welfare, safety and health. The court
said:

"The power of municipalities to enact zoning ordinances
has been the subject of considerable discussion
in recent years, resulting in conflicting decisions in
various jurisdictions, due mainly to the difference in
constitutional provisions, under which the several
statutes were enacted. The general tendency of the courts
has been toward a liberal construction of legislation
conferring power to create zoning ordinances, in
recognition of the changing needs of municipalities, due to
growth and development, and to sustain such ordinances
as a proper exercise of police power, where

      STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.      609
 Apr. 1931               Opinion Per MILLARD, J.

such can be done without arbitrarily infringing on the
rights of individuals. But inasmuch as the natural
effect of ordinances of this description is to limit
private rights in the interest of the public welfare,
the exercise of the power must be carefully guarded
and permitted only in cases where the conditions and
circumstances are such as to show the effect of the
ordinance to be a reasonable and proper exercise of
police power. The subject is considered by this court
in Ward's Appeal, 289 Pa. 458, 137 A. 630, and
Liggett's Appeal, 271 Pa. St. 109, 139 A. 619, and by the
Supreme Court of the United States in Euclid Avenue
v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71
L. Ed. 303, in which the constitutionality of such ordinances
is upheld as a proper exercise of the police
power, provided they do not interfere with the use or
control of private property, without relation to the
public safety, health, morals or general welfare, and
also holding that the power to regulate does not extend
to an arbitrary, unreasonable, or unnecessary intermeddling
with the ownership of private property.

"The findings of the court below expressly negative
every condition required to affirmatively appear, before
the action of the board refusing a permit can be
sustained. Instead of being detrimental to the safety,
health, or morals of the community, the findings distinctly
demonstrate the building in question to have
the opposite effect, tending to promote the public
safety, health and morals. Petitioner's business had
been established at its present location long before the
passing of the zoning ordinance and was actively conducted
at the time the ordinance went into effect; accordingly,
as the property was then used for lawful
purposes, the city was without power to compel a
change in the nature of the use, or prevent the owner
from making such necessary additions to the existing
structure as were needed to provide for its natural
expansion and the accommodation of increased trade,
so long as such additions would not be detrimental to
the public welfare, safety and health. The proposed
building is not of a character to change the neighborhood,
and, under the circumstances, to refuse a permit

 610    STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.
                    Opinion Per MILLARD, J.           161 Wash.

for its erection merely because, in zoning the city, the
line separating the residential and business district
ran through the lot on which the plant is located would
be sanctioning an arbitrary act without resultant
benefit to the public welfare, safety and health.

"The ordinance here in controversy, in prescribing
the powers and duties of the board of appeals, made
provision for conditions such as arose in this case by
giving the board power, 'in appropriate cases,. . .
[to] authorize a variation of the application of the
regulations herein prescribed, and for this purpose
may cause a permit to be issued for the enlargement
of existing structures, or the erection, on
the same lot or plot of ground, of additional structures
for trade, business or industry located in a district
restricted against its use where such enlargement or
expansion of such trade, business or industry will not be
detrimental to or tend to alter the character of the
neighborhood.'
"The present case is one where the board, under
authority conferred upon it by the above provisions of
the ordinance, should have allowed an exception to the
strict provisions of the ordinance and granted a permit
for the additional structures to take care of the
expansion of petitioner's business, "

Durkin Lumber Co. v. Fitzsimmons, 106 N.J. Law
248, 147 Atl. 555, is very similar to the case at bar. A
lumber dealer owned a tract of land lying in two municipalities.
The buildings and business office of the
lumber business were maintained in one municipality,
a district zoned for business. The lumber was piled and
stored in the other municipality, in which the district
was zoned as residential, such storing and piling of
the lumber being an essential part of the business.
The piling and storing of the lumber was to that extent
the conducting of the business within the latter
municipality (the residence district), and such use did not
conform to the zoning ordinance prohibiting the same.

      STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF. 611
 Apr. 1931               Opinion Per MILLARD, J.

The court held that, at the time of the alleged violation
of the zoning ordinance, the ordinance, to be within the
law, must have been in definite and substantial relationship
to the safety, health, morals, or general welfare
of the community l and that the instant case did
not have that relationship. The opinion reads as follows:

"The lands of the appellant are peculiarly situated.
They are, in shape, an oblique quadrangle, bisected on
the north and west by the boundary line that separates
the towns of Bloomfield and Belleville, and therefore
the lands lie partly in each of these municipalities.
The Bloomfield portion is zoned for industries; the
Belleville portion is zoned as an 'A' residence section.
Appellant's office building, from which its lumber
business is conducted, is on the Bloomfield side. There
are no buildings or structures on the Belleville portion,
the only use made of the last mentioned lands being
for the piling and storing of lumber, not nearer
Belleville Avenue, however, than approximately 180
feet.

"The Belleville ordinance was adopted September
4, 1923, and, not in terms but by excluding all uses
except those specifically enumerated, prohibited the
use of so much of appellant's lands as lie within the
limits of the municipality for the storage of building
materials or for the operation of a lumber business.
In or about the month of March, 1926, appellant bought
the entire tract as a unit, and, without authority from
the municipality, proceeded to use the Belleville lands
for the piling and storage of lumber incidental to the
business conducted from the buildings situated in
Bloomfield. We consider, however, that such piling
and storage of lumber was essential part of the business,
and was, to that extent, the conducting of that
business in the affected area. In other words, the use
did not conform to the ordinance. It was a non-conforming
use. Was the use at its inception therefore
unlawful? That depends upon whether or not the ordinance
was lawful in its prohibition; and we shall

 612    STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.
                Opinion Per MILLARD, J. 161 Wash.

first consider the law as it was prior to the zoning
amendment, and then in the light of that enactment.

"The ordinance was adopted in what the town authorities
conceived was a compliance with the provisions
of the Municipalities Act, chapter 152, p. 319,
P. L. 1917, as amended and supplemented, chapter 240,
p. 455, P. L. 1920, and chapter 162, p. 277, P. L. 1922.
That legislation and an ordinance passed thereunder
were considered by this court in Ignaciunas v. Nutley,
99 N.J. L. 389, 125 A. 121, 122. It was therein held
(Gummere, O. J.) that 'the legislature in its grant of
power to the several municipalities of the state to
regulate the use to which a property owner may put
his property even to the extent of prohibiting its use
for a particular purpose, limited that power by the
provisions of the statute that such regulation must
"be designed to promote the public health, safety
and general welfare." If, therefore, the ordinance, in
its application to the property of any particular owner,
does not come within the limitation of the statute, to
that extent it is without legal justification and void.'
The reasoning of the case clearly demonstrated, and
the opinion concisely held, that the ordinary use of
property is not authorized by the general welfare
clause of the statute to be prohibited because repugnant
to the sentiments or desires of a particular class
residing in the immediate neighborhood thereof, but
only because such use is detrimental to the interests
of the public at large; that the 'restriction authorized
by this provision of the statute upon the untrammeled
use of property for the promotion of the general welfare
of the community must be such as will tend in
some degree to prevent harm to the public generally
or to promote the common good of the whole of the
people of such community.'

"On this point the main argument presented by
respondents in the instant case is that of an alleged
fire hazard, and this argument becomes unconvincing
when the circumstances of the neighborhood, the arrangements
on the appellant's property, and the fact
that the ordinance does permit the disputed use in the

      STATE EX REL. MODERN LBR. & M. CO. v. MacDUFF.     613
 Apr. 1931               Opinion Per MILLARD, J.

business zone, are considered in the light of the
opinions in Ingersoll v. South Orange, 128 A. 393, 3 N.J.
Misc. R. 335, affirmed 102 N.J. Law, 218, 130 A. 721,
Rudensey v. Montclair, 131 A. 906, 4 N.J. Misc. R.
103, and Karke Realty Associates v. Jersey City, 104
N.J. Law, 173, 139 A. 55.

"As matters stood in March, 1926, it had been
clearly enunciated that a prohibitive ordinance, to be
within the law, must be in very definite and substantial
relationship to the safety, health, morals or general
welfare of the community. It seems redundant to repeat
the reasoning, the applications, or the illustrations
of the cited cases. Sufficient to say that the prohibition
in controversy did not have that relationship.
We reach the conclusion, therefore, that in March,
1926, when the use began, the ordinance, so far as it
prevented the use of appellant's property for the purpose
to which the property was actually put, was not
authorized by the statute under which it purports to
have been adopted, and to that extent was null and
void."

The location and operation of lumber yards within
the municipal limits may be a subject of municipal
regulation. Where, however, the effect of a zoning
ordinance is to destroy or prohibit the continuance of
an established and otherwise lawful business, the ordinance
as applied to the property of the objecting
owner will not be upheld, unless the court can see that
it will tend to promote the public health, morals, safety
or welfare.

"Threatened invasion of a residence district by
business may be an impelling reason for affording protection
by way of a zoning ordinance, but such an ordinance
may not operate to remove business found
there. The legitimate purposes of a zoning ordinance,
in its restrictive provisions relative to a residence
district, is to preserve and not to disrupt existing
conditions. Adams v. Kalamazoo Ice & Fuel Co., 245
Mich. 261, 222 N. W. 86.

 614    STATE v. DELANEY.
                Opinion Per PARKER, J.      161 Wash.

The judgment is reversed and the cause remanded
with directions to grant appellant the relief for which
it prays.

TOLMAN, C. J., BEALS, MAIN, and MITCHELL, JJ.,
concur.