295

Smith et al. v. Smith's Adm'r.

certainly as favorable to defendants as the law justifies, and perhaps

more so.

Lastly defendant's counsel urge that the verdict is excessive. A calculation shows that on plaintiff's evidence a verdict of not more than five hundred dollars should have been rendered. The verdict will be reduced therefore to $500 from $700 if plaintiffs consent. If their consent is withheld then a new trial will be granted

PECK & MOORE, JJ., concur.

Franklin T. Cahill, for plaintiffs.

Simeon Johnson, Albert Bettinger, for defendants.

STREET ASSESSMENTS.

[Superior Court of Cincinnati, General Term, 1889.]

HENRY KNORR ET AL. V. CINCINNATI (CITY.) ET AL.

297

1. The requirement of sec. 2264 of the Rev. Stat., that council shall determine in advance what part of the cost of a street improvement shall be assessed upon abutting property, is a condition precedent to the exercise of the power to assess, and where the declaration of council is such as to exclude a particular item of the cost of the improvement from the assessment, a subsequent assessment including such item is to that extent invalid.

■ The provisions of sec. 2193, requiring the board of improvements, in cases where an assessment is required, to report to council, "with an estimate of the amount to be assessed," are applicable to the board of public affairs of the city of Cincinnati, and where that board reports a resolution declaring the necessity of a certain improvement, with a recommendation that it be passed attached to an estimate of the cost of the improvement, which estimate sets forth the amount to be assessed upon the abutting property in such a manner as to exclude the belief that it was their intention to include the amount of damages paid to the abutting owners as part of the assessment, it is to be presumed that the statement of the amount to be assessed was made by the board to the council in pursuance of the duty imposed by sec. 2193, and council in adopting the resolution with such estimate and statement attached. is presumed to have accepted and adopted as its own, the declaration of the amount to be assessed.

The estimate required by secs. 2213, 2214, is only an estimate of the cost of con struction, while that provided for by sec. 2193 is an estimate of the amount to be assessed, which may include any or all the items mentioned in sec. 2284.

RESERVED on the pleadings and evidence.

PECK, J.

The purpose of the action is to enjoin the collection of a part of an assessment levied by the authorities of the city upon the property of the defendants abutting on Hunt street between a point 740 feet south of the Montgomery road and McMillan street, to pay the cost of improving Hunt street between the points aforesaid. Two objections to the assessment are set forth in the petition, but one of them, viz., that it exceeds twenty-five per cent. of the taxable value of the property, need not be considered, because it is conceded by the city solicitor to be well taken, and wherever the assessment exceeds that amount it will be reduced to the proper sum.

This judgment was affirmed by the Supreme Court without report, October 28, 1890.

Superior Court of Cincinnati.

297

The real controversy in the case respects the claim of plaintiffs that the $42,603.66 damages paid to owners of abutting property for injury caused to the same by the construction of the improvement was included in the assessment, thereby increasing the same to the extent of about $5 per foot front. The plaintiffs claim that it was illegal to include such damages in the assessment for several reasons.

First, because the statutes provide for a different mode of proceeding in cases where property is to be appropriated and the cost of appropriation is to be assessed upon the abutting property. That in such case it is required that notice of the proposed assessment for condemnation shall be given as well as of the assessment for improvement; that the two are distinct; and that notice of the one does not include notice of the other, and that the resolution and ordinance to improve adopted by council in this case only gave notice of the intention to assess the cost of the construction of the improvement upon the abutting property.

It will be observed that this claim is wholly based upon the proposition that the proceedings to assess damages are in effect proceedings in appropriation, and that the assessment to pay the damages should be levied in accordance with the provisions of the statutes providing for assessments to pay the cost of property appropriated. This proposition is based upon the further claim that the record discloses that the damage to the abutting property was caused by a large fill, and that damages paid under such circumstances are to be presumed to have included an easement of support for the fill so made, and that an interest in the property is thereby acquired. As matter of fact the record does not disclose with any degree of clearness how the damages were caused. It does disclose the fact that a fill was made, but how much of the injury for which compensation was paid to the abutting owners was thereby occasioned does not appear. It does not necessarily follow that compensation for the damages included any acquisition of an interest in the property. It is true that an easement of support for a roadway may be appropriated without also appropriating the fee. Dodson v. Cincinnati, 34 Ohio St., 276; but it does not follow that the payment for damages occasioned by a fill constitutes the appropriation of such easement. Circumstances may be readily imagined where the compensation so paid would extend only to the direct injury to the improvements on the property. In fact, the filling of vacant property up to the grade of the street is usually regarded as a benefit, and the circumstances would have to be peculiar to authorize the recovery of any damages for such filling, and this is so well known as almost to authorize a presumption of fact that when damages are paid for injuries occasioned by the filling of a street extending over upon abutting property, it is the injury to the improvements for which compensation is being made.

An examination of the statutes relating to the assessment and payment of damages in such cases will, we think, show that it was not contemplated that such proceedings should include the appropriation of any interest in the property. Provision is made for the filing of claims and the assessment of damages, either before or after the completion of the improvement, by the verdict of a jury, and in certain cases by three disinterested free-holders -secs. 2315 to 2334--but the damages so to be assessed, are such as the property holder might recover in an action at law-and he could hardly enforce an appropriation of his property upon the city by such action. That the damages to be assessed are of the sort indicated, is shown by various provisions of the statutes, but

297

Knorr et al. v. City of Cincinnati et al.

especially by secs. 2325 and 2326. The latter, to a certain extent, regulates the bringing of actions for such damages, and the former provides that if the property-owner does not accept the award of the assessors, but brings his action, and does not recover more than the amount allowed by the assessors, he shall pay the costs. On this point we conclude that in the absence of any direct evidence showing that the compensation assessed was intended to or did include payment for any interest in the property, it is to be presumed that the assessment only covered damages such as could be recovered by the property-holder in an action brought by him. It is therefore unnecessary to consider plaintiffs' other proposition on this point.

It is next contended that no preliminary determination to assess the damages as a part of the cost of the improvement upon the abutting property, was made by the council as required by sec. 2264, which provides that the council may decline to assess the cost of the improvement or any part thereof except as thereinafter provided, on the general tax list, "in which event, such cost and expenses, or any part thereof which may not be so assessed on the general tax list, shall be assessed by the council on the abutting and such adjacent and contiguous or other benefitted lots and lands in the corporation, either in proportion to the bnefits which may result from the improvement, or according to the value of the property assessed, or by the feet front of the property abutting upon the improvement, as the council, by ordinance setting forth specifically the lots and lands to be assessed, may determine before the improvement is made."

We are not disposed to dispute the proposition that this section requires of the council a preliminary determination as to the part of the cost to be assessed upon abutting or benefitted property, the mode by which the assessment is to be levied, and the lands to be assessed.

The question to be determined here, is whether the council has complied with these requirements. The resolution declaring the neces sity of the improvement, and the ordinance to improve, indisputably determine that the assessment shall be by the foot front, and upon the property abutting upon the improvement; and the only question discussed, is whether either of them contains a determination as to the part of the cost to be assessed, so worded as to include the damages mentioned.

The resolution sets forth that "the expense of the said improvement, is to be assessed per front foot upon property bounding and abutting thereon, according to the law and ordinances upon the subject of assessments." The provisions of the ordinance as to the assessment is that "the expenses of said improvement, including interest on bonds, if they be issued, shall be assessed per front foot, upon the property abutting thereon according to the laws and ordinances on the subject of assess ments, etc., and as to the damage it contains the following:

"SEC. 3. That the damages to the abutting owners who have filed claims for damages by reason of said improvement shall be determined before the construction of said improvement is commenced, and the city solicitor is directed to proceed to ascertain the amounts of damages without delay." Pursuant to these provisions the damages were ascertained before the making of the improvement, and were included in the amount assessed upon the property as before stated.

The language of both resolution and ordinance is broad enough to include the damages, for it is quite clear that the payment for the damages was a necessary part of the "expense of the improvement." The

Superior Court of Cincinnati.

297

statute, sec. 2234, expressly provides that the cost of any improvement shall include "the damages assessed in favor of adjoining lands." It is claimed, however, that because there is a special provision as to mode of ascertaining of the damages, and a special provision that interest on the bonds if they are issued shall be included, it is to be interred that the council did not intend to provide that the damages should be included in the assessment. If the general language of the ordinance is broad enough to cover the damages, then we can perceive no reason for excluding them from its operation because of the provisions as to the time when the amount of damages should be ascertained-a provision which the statute required council to make. Sec. 2316. Language which includes the total cost of the improvement, necessarily includes the damages paid which were caused by the improvement, and such a provision as that contained in sec. 3, of the ordinance supra, in no way limits the meaning of the same. So also of the provision as to interest, as to which there were reasons for special mention, not applicable to the matter of damages.

The real controversy on this point arises out of the fact that along with the resolution to improve was transmitted an estimate which upon its face purports to set forth the total cost of the improvement to be assessed, which estimate of cost is made up entirely of items of construction, such as grading, masonry, and the like, so that it necessarily excludes the idea that damages formed any part the estimate, and it further contains the statement that the "expense to property owners," shall be about $8.96 per foot, which is about what the assessment would be if damages were excluded, while it is about $14.00 per foot front including damages. If the estimate is to be treated as a part of the resolution, it may limit the words therein " the expense of the improvement shall be assessed," to the expense of construction as shown by the estimate; but if it is not to be treated as a part of the resolution, the language of the latter is, as we have seen, broad enough to include the damages. It is claimed that sec. 2214 makes it the duty of the board of public affairs to transmit to council with the resolution an estimate of the cost of the work-and that this estimate was transmitted in accordance therewithand is, therefore, necessarily to be treated as a part of the resolution for any and every purpose. There is a difference between such expressions as "the cost of the work," or "the cost of construction," and the phrase "cost of improvement," which difference is clearly recognized by sec. 2234. The former would ordinarily mean only the cost of the work and materials necessary to construct the improvement, while the latter includes every sort of expense incident to the improvement, including damages.

The provisions of sec. 2214, requiring the transmission of an estimate, we take to relate to an estimate of the cost of construction, hecause the next section contains the provision that "no contract shall be awarded to any bidder the cost of which will exceed the estimate transmitted to council." These sections taken together plainly indicate that the required estimate is intended as a limitation upon the power to con tract for the construction of the work-and the matter of the damages to be paid to abutting owners has no connection with determining what shall be paid a contractor for his work and materials-and hence has no place in an estimate of the cost of construction. It follows that if the estimate was transmitted solely in compliance with sec. 2214, it was and is to be understood as an estimate of the cost of construction only, and

297

Knorr et al. v. City of Cincinnati et al.

connot limit the words "expense of the improvement" found in the resolution and ordinance, so as to exclude the damages from the assess

ment.

The question, however, remains as to the effect of sec. 2193, which is in the chapter relating to the board of improvements. There is no such board in this city, but sec. 2212 provides that the board of public affairs. shall have all the powers of such board of improvements and shall be governed by the same rules, when not inconsistent with the provisions of the chapter relating to the board of public affairs. As we find nothing in that chapter inconsistent with sec. 2193, we conclude that the provisions of the latter are applicable to the board of public affairs, and so applying it, we find it to be the duty of that board, when an assessment is required, to report the same, "with an estimate of the amount to be assessed, to the council, which shall take such action thereon as may be deemed proper." It is to be presumed that when the board reported to the council that the amount to be assessed should be the cost of construction of which the estimate consisted, it was not intended to include anything else in the assessment. It will be observed that the estimate provided for in sec. 2193 is not the same as that required by sec. 2214. The former is an estimate of the amount to be assessed, and the latter, as before stated, of the cost of construction only.

In Hubbard v. Norton, 28 Ohio St., 116, it was held that the requirement now embodied in sec. 2193, as to the transmission of an estimate, is not a condition precedent to the exercise of the power to assess-but the learned judge who delivered the opinion in that case, speaks of it as one of the duties of the board, and such it undoubtedly is; and when, as in the case at bar, the board undertakes to perform its duty in that behalf, due effect must necessarily be given its action as affecting the purposes and intention of the municipal authorities. It did transmit an estimate of the amount to be assessed, with the resolution to improve, and upon the same sheet of paper. The resolution as framed by the board, if taken alone, contained expressions which are broad enough to include the damages in the assessment there provided for, but the same board in the estimate, specifically stated the amount to be assessed, so as to exclude the damages-and if we were endeavoring to get at the intention of the board of public affairs alone, we should unhesitatingly say that the amount which its members intended to be assessed upon the abutting property, is there so explicitly stated as to leave no room for doubt, and that amount is made up solely of the cost of construction. It is difficult to perceive why the same rule of construction shall not be applied to the action of council in this case. The latter body received the resolution with the recommendation and estimate attached to it, and adopted it without the change of a letter. It is to be presumed that these bodies were aware of their statutory duties, and endeavored to perform them. They were attempting to estimate and declare the part of the cost of the proposed improvement to be assessed upon the abutting property. Taking it altogether, as we must, we conclude that council did not declare that these damages were to be included in assessment, but their declaration was such as to necessarily exclude them from the assessment, and as such declaration is a condition precedent to the exercise of the power to assess, the assessment which includes the damages is to that extent invalid.

We do not regard this as strict construction, but rather that it is the only construction, which under the circumstances can be put upon the