Thille v. Board of Public Works , 82 Cal. App. 187 ( 1927 )

I concur in the judgment. It is only fair, however, to admit that I have found it difficult to be satisfied with this extension to set-back ordinances, of the rule recently declared in the zoning cases. To say that the owner of a lot, in building thereon, shall leave vacant a thirty-foot strip in front of his property is different in fact, if not in principle, from a mere regulation governing the kind of structure that he may place upon his land. A set-back ordinance, at least in some instances, goes perilously near to depriving the owner of his property without compensation. To wholly deprive one of the use of property is in effect the same as taking the property entirely away from him. On the other hand, of course, it must be conceded that the use is not entirely destroyed, since there remain the rights of light and air and the right of access or passage to and fro across the otherwise unoccupied space. There also remains the right to cultivate the ground and ornament it with grass, trees, and flowers, or, if the owner prefers, with cabbages and turnips, until, perhaps, such right shall be taken away from him for esthetic reasons. A writer, who apparently is neither a judge nor a legislator, has recently remarked concerning Charles I of England: "His theory of the divine right of kings is dead — or at least has been transmuted into a theory of the divine right of legislatures to make police regulations." Even in very recent decisions in some of the states the courts have refused to concede the right to enforce the establishment of set-back lines by exercise of the police power, and have insisted that such regulations should be enforced under the power of eminent domain, where a right of compensation is recognized. The supreme court of Massachusetts, in making such a ruling, declared that the establishment of such a building line is the creation of an encumbrance upon private property in favor of the public; and that such establishment of a building line being a taking of property by eminent domain, the procedure prescribed for such taking must be followed. (Inhabitants of theTown of Watertown v. Dana et al., 255 Mass. 67 [44 A.L.R. 1374, 150 N.E. 860].) If the police power applies to such a case, then the encumbrance always exists in an inchoate state, and is not "created" by the set-back ordinance.

Notwithstanding the foregoing observations, which at least show the difficulty of arriving at a decision in favor of appellants in this case, I concur in the judgment of reversal because I think that such is the inevitable progressive consequence of the decisions rendered in the Miller case and in the Zahn case, which are extensively quoted in the foregoing opinion written by Mr. Justice York. It is admitted by everyone that all private property is held subject to the state's exercise of that vast and flexible authority known as the police power. It may be that some of these later applications of that power, in the control of property rights, present themselves to our minds in the aspect of something arbitrary while they are new, but will seem less objectionable when our independent souls become accustomed to the new bonds. As the individual withers and as his frontiersman spirit is tamed, he will more easily recognize that when he lives in Rome and owns property there he must submit to the conditions which the Romans prescribe. Since it is now established to be the law that the city of Los Angeles, in adopting its zoning plans, may provide for strictly private residential districts, from which all kinds of business structures are prohibited, it is perhaps a very short step, and not crossing any boundary lines of principle, to preserve the commonly accepted characteristics of such residential districts by insisting that every house shall have its own "front yard," with an incidental view across the neighbors' front yards. It may be worth while to observe, however, that the application of this rule may have a direct effect in limiting the choice of property owners in selecting building plans for homes, so that instead of rear gardens or interior gardens and playgrounds for their children, the trapezes and hobby-horses will have to go out into the more exposed and more public front yard.

It may be, however, that while the enactment of set-back ordinances, as such, is a thing within the power of the municipality, yet that some set-back ordinances might be rejected as unreasonable invasions of private right. In the case at bar, where it appears that the property owner is seeking to erect on the street line a garage for trucks used by him in his trucking business, and to do this in a block of residences, all of which are set back from the street line, it does not seem probable that the application of the ordinance in this case is peculiarly unreasonable.