New Britain herald., 1927-09-13
MELBOURNE LOSES
 GAS STATION PLEA
Judge Roche Denies Claim Con.
 struction Work Was Begun
DECISION IN CITY COURT
Filing in of Hollow and Laying of Culret Not Sufficient Under Law, Ruling Made in BeIyidere Build Ing Permit Controversy.

Ruling Made in BeIyidere Build Ing Permit Controversy. The question Of whether Edward O. kilbourne began construction Of q gasoline station opposite Stanley Quarter park when he filed in hol- low land and built culvert, has been determined by Judge Henry P. Roche, who declares this is not con struction' within the meaning Of the law.
 Judge Roche'e decision vas given today on claim made by Kilbourne through Judge F. B. Hungerford and demurred to by Corporation Counsel John H. Kirkham In behalf of the city. Counsel for the claimant declared the filling and the building Of q culvert to be q part of the construction and since it was started within three months of the issuance of q permit to kilbourne it was argued that the license could rot be revoked. Judge kirkham an- swored with claim that these op- erations could not be construed as construction work and Kilbourne's permit had lapsed by reason Of the expiration of three months. In the interim zoning restricted business uses out of this area and kilbourne was unable to obtain a new permit
 Judges Memorandum
 Judge Roches memorandum reads:
 According 10 the allegations of Paragraph :, the foundation of building in question was not started until June 1st, 1926. which time was more than three months after last renewal of permit on November 2l. 1925, so that only question remain ing is whether or not building a the case within the proviso of the ordinance. that construction shall begin within three months from the date of issuance Of such permit
 If such is the fact. then con- struction began May. 1925, as alleg- ed in Paragraph 6 of the answer and the renewals of the permit as al- lcced in Paragraph of the answer were not necessary.
 "A building is defined in the Bou- vier Law dictionary as follows: An edIfice erected by art and fixed upon or over soil, composed of stone, brick. marble, wood or other proper suh@tanco connected together and designed for use in the position in which it is fixed
 Construction is defined by the Standard Dictionary, to put to- gother. to build. to erect, to devise
 In speaking of commencement of building. 2 C. J. 6S7, contains the following statement:
 Some work and labor on the ground, the effects of which are ap- parent. easily seen by everybody such as beginning to dig the founda- tion or work of like description which everyone can readily see and recognize as commencement of a building
 Digging Is Not Building
 "The removal Of the sod the turn ing over of the soil or such other eQuivocal acts as would not fairly indicate purpose to build, do not constitute the commencement of the 
 "To satisfy the law, so much must be done of a permanent char acter that will apprise observers that building is in progress.
 "There are cases in Pennsylvania under the lien law which was dis because under the statute line starts with, visible commence ment of the work upon the ground
 Prom the above citations it ap- pears that the requirement. under the proviso of the ordinance Is that there should be actual construction of some portion of the physical thing, that subsequently, became building in order to commence con- struCtion as required. Here it is al legged that placing q culvert and fill ing up a lot are the beginning of the of building, but this would appear 10 be rather the pre- iminary preparation of the land for the beginning of construction rather than beginning of the construction of the building itself as required by the ordinance.
 For this reason the demurrer Is sustained"
 Attorney Hungcrford stated today hat an appeal rom the decision of i he local court will be filed in su- Dcrior court.