
    ASSESSMENTS.
    [Licking (5th) Court of Appeals,
    March Term, 1917.]
    Houck and Allread, JJ.
    Judge Allread sitting by designation.
    Isaac N. Wilson et al. v. Newark (City).
    Injunction Against Collection of Assessment for Sewer, Where Constructed to Perform a Double Purpose at Some Time in Future.
    Where a sewer is constructed for both drainage and sanitary purposes, but its use as a sanitary sewer must be postponed, an action lies by an abutting owner for injunction against collection of so much of the assessment as represents the increased cost in adapting the sewer to sanitary purposes until such time as it is open for use for that purpose, if such use is not delayed for an unreasonable period — in the instant case two years.
    [Syllabus by the court.]
    
      Phil. B. Smythe, for plaintiffs.
    
      Ralph Norpell, City Sol., and Martin & Martin, for defendants.
    Appeal.
   HOUCK, J.

This is an appeal ease, and was heard to this court upon the evidence. The plaintiffs pray for an injunction perpetually enjoining the defendant from collecting certain assessments levied on the properties of each of the plaintiffs herein by reason of the construction of a certain sewer in the street running along the properties of the plaintiffs.

It is claimed by the plaintiffs that, in the construction of the sewer in question, it was done at a cost in excess of that provided in the plans and specifications, and that thereby the defendant is estopped from collecting said assessments. It is not claimed by counsel for plaintiffs that there was any irregularity in the proceedings of the defendant as to the plans and specifications or construction of said sewer. The evidence in this ease clearly shows that the sewer is not only a drainage sewer, but is a sanitary sewer, and that it was constructed by the defendant with these two objects in view. In other words, the sewer in question is what may be termed a combination sewer, and may be used for drainage, sanitary, and possibly other purposes. We further find from the evidence that the plaintiffs have been and are substantially benefited by the construction of this sewer, if permitted to use it not only for drainage but for sanitary purposes. The evidence clearly establishes the fact that the cost of constructing the sewer in question for drainage purposes would be about 70 per cent of the assessments sought to be levied on the properties of plaintiffs for such construction, and that 30 per cent of said assessments would be for sanitary purposes. We do not think it equitable, as between the parties hereto-, that the plaintiffs should be compelled to pay the entire cost of the sewer in question, or be required to pay the full amount of such assessments, until they are permitted to use it for all of the purposes for which it was constructed.

In view of the facts, as clearly established by the evidence in this case, and the law applicable to those facts, we are of the opinion that a permanent injunction should be allowed as to 30 per cent of the assessments levied upon the properties of each and all of the plaintiffs, and a permanent injunction refused as to 70 per cent of such assessments, and in case defendant furnishes an outlet for sanitary sewer within two years from April 1, 1917, the 30 per cent to become effective, otherwise the injunction as to the 30 per cent to stand. Defendant to pay costs.

Decree and judgment accordingly.

AHread, J., concurs.  