
    ASSESSMENTS.
    [Hamilton Circuit Court,
    January Term, 1898.]
    Cox, Smith and Swing, JJ.
    John B. Doppes et al., Executors, v. Cincinnati et al.
    'Signing for Improvement of Street Estopped, from Denying Ownership of Assessable Frontage. Limitation does not Apply,
    Where the owners of three-fourths of the abutting property sign for improvement of a street, the signers are estopped from resisting the assessment on the gound that they did not own three-fourths of the “ assessable ” frontage; and the twenty-five per cent, limitation does not apply.
   Smith, J.

The petition of the plaintiffs aver that Doppes is the owner of lot 177, of Poor’s subdivision, and that Hubbell and Fisher, as executors and trustees, own lot 225 of said subdivision. That about 1889 the city by its proper boards and officers improved Powers street in said city from Van Horn street (now Edgewood avenue) to Sylvan avenue, and by ordinance duly passed, assessed the cost thereof on the property abutting thereon, viz., the sum of $5,016 on each front foot of such abutting property. That there was not a petition subscribed by three-fourths in interest of the owners of property abutting on said improvement between said termini to the proper board for such improvement, and that lot 177, after the improvement was made, had a fair market value of only $700, and that lot 225 had a fine market value of only $200 and that Doppes and his grantor paid on said assessments in 1890, $90.29; and in 1891, $87.28; in 1892, $84.20, and in 1898, $81.26, and that Margaret Poor paid in 1892, $84.27. And plaintiffs seek to enjoin the collection of the balance of the installments.

By an amendment to the petition, plaintiffs aver and for a second cause of action say, that lot 177 has a frontage of 27.4 feet, and abuts lengthwise on said improvement 120 feet; that lot 225 has a frontage of 25 feet, and abuts lengthwise upon said improvement 120 feet; that said lots were assessed for the said improvement as if the same each fronted 120 feet upon said improvement, whereas the same should have been assessed, respectively, for only 27.4 feet and 25 feet, and that all of said assessments in excess of the assessment upon 27.4 feet and 25 feet respectively, is invalid, and they pray to have said excess enjoined.

The defendants, by their answer, first admit the making of the improvement under the ordinance and the assessments as alleged, and deny dll the other allegations in the first cause of action, and particularly aver that the property was of such value as to stand the assessment. They further aver that prior to the passing of the resolution declaring the necessity of such improvement or any action of the city in regard thereto, a petition was presented to the city by three-fourths in interest of the owners of property abutting on said improvement, being 360 feet of the whole 480, praying for said improvement; that on thq iaith of such petition, the city passed the ordinance and made the improvement in accordance with the petition; that the predecessors in title of Doppes and of Hubbell and Fisher signed said petition, and are estopped to set up their claim under the first cause of action. For answer to the second cause of action, defendants aver that lot 177 fronts, bounds and abuts on Powers street, as improved, 120 feet, and lot 225 fronts, bounds and abuts thereon 120 feet.

A reply was filed for plaintiffs in the nature of a general denial. This was not verified by the plaintiffs themselves, but bjr their counsel.

The facts shown or agreed upon, as we understand, are substantially these: The part of Powers street improved in this proceeding is a single square in length, between Sylvan avenue and Van Horn street, now Edge wood avenue, and but four lots abut on Power street, viz., 224, the Mayer lot, and 177, the Doppes lot, on the north side; and 225, the Herron and Fisher lot, and L76, the Mockes lot, on the south side. Each of said four lots abut 120 feet on Powers street. They are all corner lots, and 224 and 225 seem to front on Sylvan avenue, the first 27.4 feet and the other 25 feet. Dots 177 and 176 seem to front on Edgewood avenue, the first 27.4 feet and the other 25. If there had been no petition for the improvement, or other act done by the owners of these lots, to change their relation with the city, it would seem that each of these lots could only have been assessed for this improvement under the doctrine of the Haviland case, for their real frontages — that is, lot 225 for 25 feet, and lot 177 for 27.4 feet. But the fact is that the owners of three of these lots, representing themselves in the petition to be the owners of three-fourths of the property represented by the feet front abutting upon Powers street between Van Horn street and Sylvan avenue, petitioned for this improvement, and for the assessment for the whole cost of such improvement, except the cost of intersections and two per cent., to be made and collected in ten e'qual annual installments.” * * * “And in consideration of the city making such improvement, we and each of us further agree with each other and with said city, and we jointly and severally bind ourselves to make good to the city any deficiency in the collectibility of the assessment caused by insufficiency of values of property of those not signing this petition.”

This was signed by the owner of lot 176,120 feet, by the owner of lot 177 for 120 feet, and by Herron and Fisher, owners of lot 225, thus : “Entire property on both sides of Powers street, between Sylvan avenue and the corporation line, and 120 feet between Sylvan avenue and Van Horn street.” Over some part of this statement as to the property represented by Herron and Fisher is a cross-mark; when this was done or by whom does not appear. It is shown, however, that Powers street was improved under these separate petitions, one on a petition for the improvement of said street between Sylvan avenue and the corporation line. This petition was signed by Herron and Fisher only, and was for “entire property on both sides.” The second was the one already referred to, and the third was for that part of Powers street between Van Horn street and the Colerain pike. This, too, was signed by Herron and Fisher. We think that when Herron and Fisher signed the petition in question in this case, or after it was done, some one undertook to strike out that part of it which referred to all “the property on both sides of Powers street, between Sylvan avenue and the corporation line,” as not being necessary in this petition. But as has been said, there is no explanation as to this, and we feel quite sure the petition was signed by the owners as it originally stood, and was not stricken out by them or by their authority before presentation to the city. It stood then as a petition for the improvement representing their property to be 120 feet, and that the petition was signed by three-fourths in interest of the property represented by the feet front abutting upon Powers street. And such was the case as to lots 225 and 177, the latter now owned by Doppes. We think, therefore, on the authority of City of Cincinnati v. Manss, 54 O. S., 257, they are estopped to deny that they had the 120 assessable feet stated in their petition, and thatthis rule applies also to the other petitioners therefor, and consequently that they were properly assessed for the whole 120 feet. We also find that there was in this case a petition signed by three-fourths in interest of the owners of the property abutting ón the improvement in the meaning of sec. 2272, Rev. Stat., and therefore, that those signing said petition can not avail themselves of the general provision of the statutes that the assessment shall not exceed 25 per cent, of the value of the lot so abutting. They have consented to pay the whole thereof, except 2 per cent. The petition will therefore be dismissed.

Theodore Horstman, for the property owners.

George H. Kattenhorn, for the city.  