Page:The Green Bag (1889–1914), Volume 18.pdf/460

 NOTES OF RECENT CASES danger from severe storms or natural decay, and that it would hardly be contended that a munici pality would be authorized by the legislature to compel the owners of buildings already erected to take them down and move them ten feet back from the street line. Yet the danger to the public from bricks or slates, ice and snow falling from the building is much greater than any possible danger from a billboard. In determining whether a regulation is reasonably necessary to secure the public safety, and therefore within the police power, existing habits and customs are of great weight, and the universal custom of building upon the street line is evidence that the public safety does not require that structures like billboards should be set back from the line. The very fact that the ordinance is directed against sign and billboards only and not against fences, indicates that some consideration other than the public safety led to its passage. It is probable that the enactment of the ordinance was due rather to aesthetic considerations than to considerations of public safety. A man may not be deprived of his property because his tastes are not those of his neighbors. Esthetic considerations are a matter of luxury and indulgence rather than necessity, and it is the right of all which justifies the exer cise of police power to take private property with out compensation. This decision is in entire accord with a recent well-considered case on the same subject in Massa chusetts. Commonwealth v. Boston Advertising Co., 188 Mass. 348. In that case a statute (Statutes 1903, C 158) authorized the Metropolitan Park Commis sion, and 'the officers having charge of public parks and parkways, to " make such reasonable rules and regulations respecting the display of signs, posters, or advertisements in or near to, and visible from public parks and parkways entrusted to their care, as they may deem necessary for pre serving the objects for which such parks and parkways are established and maintained." Un der this authority a regulation was established forbidding the erection, maintaining, or displaying a sign visible to the eye within the park or park way without written permission of the Commission, and the defendent was prosecuted for so doing without such permission. This rule was held a taking of property, and as no compensation was provided it was held invalid. But the court added : " We do not hold that no valid rules as to signs, posters, or advertisements on land near to public parks or parkways can be made under Statutes 1903, C 158. Rules intended to prohibit advertisements of indecent or immoral ten dencies, or signs dangerous to the physical safety

429

of the public, no doubt would be reasonable within the meaning of the statute and invalid." Lee M. Friedman. This is but one of a long line of decisions which deal with the right of the individual to the acquisi tion of property and to manage and enjoy the same. It is in line with the so-called " spite fence " cases, the building line cases, and with cases which pass upon the right of the municipality to refuse a building permit when the building sought to be constructed is not in harmony with others in its vicinity or with plans which the authorities approve. In by far the larger number of the adjudicated cases the courts have asserted as a principle of the common law that the right of the owner to use his real estate as he pleases is practically unlimited provided that there arises from such use no actual physical detriment or danger to others or an annoyance so tangible of physical as to amount to a nuisance, and that the motive which inspires the particular use cannot be inquired into. See exhaustive brief in L.R.A . Vol. 40, p. 177. Although they have, where the legislatures have seen fit to extend the common law, sustained statutes whose aim has been to restrain and prohibit uses of private property which are palpably malicious and useless in their nature and where no benefit or advantage save that of the gratification of hatred and spite has been reason ably inferable or reasonably possible (see Rideout v. Knox, 148 Mass. 368, Brief L.R.A. Vol. 40, p. 181), they have in the absence of statute, and this even in the case of spite fences, steadily denied the existence of a common law right to light, air, or view which the parties injured by such structures may invoke. See Litts v. Kessler, 54 Ohio. St. 73, 40 L.R.A. 175 and brief L.R.A, Vol. 40, p. 177. They have refused to recognize injuries which cannot be definitely measured and whose existence or non-existence must depend upon the degree of cultivation or taste possessed by each particular judge, jury, commissioner, or community, and concerning which there can be no uniformity of opinion. They have steadily refused to recognize the existence of any aesthetic prop erty rights in such cases either in the owners of adjacent property or in the public at large, and have refused to adopt the idea now so prevalent upon the continent of Europe and which in the past has done so much to beautify and refine the old world, that the cultivation and the preservation of the aesthetic is essentially a governmental function. Though they have been willing to sus tain building line and other building restrictions when inserted in the deed and consented to by the parties, and have been willing to look upon such as covenants running with the land, they have