
    City of Cincinnati v. Sherike.
    
      Municipal Corporations — Public Improvements — When Property Owner Entitled to Damages — Practice.
    1. The provision contained in section 2327 of the Revised Statutes, that the proceedings with respect to public improvements by municipal corporations “ shall be strictly construed in favor of the owner of the property assessed, or injured, as to the limitations on assessment of pri vate property, and compensation for damages sustained,” requires that a strict construction be placed upon those proceedings by which it is sought to deprive the owner of his right to damages for property taken for, or injured by the improvement; and in order to create a forfeiture or bar of his claim, it must appear that the conditions upon which such forfeiture or bar depends, have been strictly performed.
    2. Section 2304 of the Revised Statutes requires that, “ when it is deemed necessary by a city or village to make a public improvement, the council shall declare, by resolution, the necessity of such improvement, and shall give twenty days written notice of its passage to the owners of the property abutting upon the improvement,.....who may be residents of the county, and publish the resolution not less than two nor more than four consecutive weeks, in some newspaper published and of general circulation in the corporation.” In cities of the first grade of the first class, the power to serve and publish such notice, was in 1884 vested in the board of public works, now in the board of public affairs. The duty enjoined by section 2315 upon the owner of abutting property who claims damages by reason of the improvement, is, that he shall file his claim with the clerk of the corporation “ within two weeks after the service or completion of the publication of the notice mentioned in section 2304;” and if he fail to do so, he shall be deemed to have waived the same, and be barred from receiving damages. Held : To bar the property owner of his damages, the requirements 'of section 2304 with respect to the notice, must be strictly complied with. It is essential that the notice given him of the passage of the resolution declaring the necessity of the improvement, be a written notice, served or authorized by the proper board.
    3. Where, in a proceeding to assess damages under section 2318 of the Kevised Statutes, the municipal corporation makes the owner of property abutting upon the improvement, who bad filed bis claim for damages with the clerk of the corporation, a party to the application for the jury therein provided for, and submits the assessment of his damages to the determination of the jury, and a verdict is returned in his favor for the amount proven, the corporation cannot then, in that proceeding, defeat his right to the damages so assessed him, on the ground that he waived the same, and is barred from receiving damages, by reason of his failure to file his claim within the time prescribed by law.
    (Decided March 25, 1890.)
    Ekror to the Circuit Court of Hamilton county.
    The Common Council of the city of Cincinnati, on the 81st day of March, 1884, adopted a resolution, on the recommendation of the board of public works, declaring it necessary to improve Hunt street, in said city, by grading, setting curbs and crossings, flagging and paving gutters, and macadamizing the roadway, in accordance with certain plans, profiles and specifications; the expense of said improvement, to be assessed per front foot, upon the property, bounding and abutting thereon. The defendant in error, Frederick Sherike, who was then, and thereafter continued to be, the owner of a lot of land bounding and abutting upon the improvement as proposed, claiming that he would sustain damages by reason of the improvement, filed his claim in writing with the clerk of the corporation, setting forth the amount of the damages claimed, with a general description of the property, to which, he claimed, the injury would accrue. A number of other persons, owning property abutting upon the contemplated improvement, also filed like claims for damages. On the 27th day of February, 1885, the council duly passed an ordinance to improve Hunt street, as specified in the resolution previously adopted, declaring the necessity for such improvement. The ordinance provided that the damages to the owners of abutting property who had filed claims for damages by reason of the improvement, should be determined before commencing the improvement, and directed the city solicitor to proceed to have the amount of the damages ascertained without delay. On the 28th day of November, 1885, the solicitor filed in the Court of Common Pleas of Hamilton county his written application for a jury to inquire into and assess the damages.
    A jury was duly impaneled, evidence was given by the defendant in error, and the other claimants, tending to prove the amounts of their damages respectively, and a general verdict was returned by the jury, assessing the damages of the defendant in error, and of each of the other claimants. The verdict, so far as it relates to the defendant in error, is as follows:
    “ We, the jury impaneled and sworn in this proceeding to inquire into and assess in each case separately, the actual damages to the property of the respective defendants described in the petition, to be occasioned by the improvement of Hunt street, under Ordinance No, 8604 of the Common Council of Cincinnati, passed February 27, 1885, to the grade established by ordinance of said city, passed April 24, 1874, and including the right of an easement in the lands of said defendants, respectively, abutting and immediately contiguous to said street, necessary for the purpose of making thereon a sloping fill, sufficient to afford lateral support to said street, when improved as aforesaid, do find and assess the said actual damages to the property of said respective defendants, described in the petition, to be as follows, to wit:
    “ To Frederick Sherike, premises being 105 feet front, on the west side of Hunt street, by 150 feet deep, the sum of eight hundred ($800) dollars.”
    The following special verdict was also returned by the jury, viz.,
    u Special verdict as to the property of Frederick Sherike. Questions to be answered by the jury:
    
      1. ’ When was Frederick Sherike served with notice of the passage of the resolution to improve ?
    
      A. Upon the 22d day of May, 1884.
    2. When did Frederick Sherike file his claim for damages for his property ?
    
      A. Upon the 5th day of March, 1885.
    3. What, if any, will be the amount of actual damages to the property of Frederick Sherike by the grading of Hunt street, to grade established by the ordinance of April 24, 1874?
    
      A. Eight hundred dollars.”
    Upon the motion of the city, the court vacated the general verdict so far as it related to the- defendant in error, for the reason, as stated in the record, that his case was fully covered by the special verdict; and rendered judgment against him on the special verdict, on the ground, that it appeared therefrom, that his claim for damages was not filed within the time allowed by law, that is, within two weeks after the 22d day of May, 1884. To this action of the court the defendant in error duly excepted, and his bill of exceptions in that behalf was allowed, which purports to set out all of the evidence and proceedings. The bill of exceptions shows that defendant in error, among other things, gave evidence to prove the amount of his damages, and tending to prove that the actual damage to his premises by reason of the improvement, would amount to eight hundred dollars.
    The only evidence offered by the city is stated in the bill of exceptions as follows :
    “ Thereupon the plaintiff, to maintain the issue on its part, offered testimony showing that the defendant Frederick Sherike was served with notice of the passage of the resolution to improve Hunt street upon the 22d day of May, 1884.
    “ And that said defendant filed his claim for damages for his property upon the 5th day of March, 1885.”
    Sherike prosecuted error to the circuit court, where the .judgment of the court of common pleas was reversed, and judgment rendered in his favor for the damages assessed him by the verdict; and the city, by this proceeding, seeks to have the judgment of the circuit court reversed, and that of the common pleas affirmed.
    
      Sorstman, Sadden, G-alvin §■ Van Sorn, for plaintiff in error.
    
      Baker & Goodhue, for defendant in error.
   Williams, J.

The claim of the plaintiff in error is, that at the hearing in the court of common pleas, before the jury impaneled to assess the damages upon the claims filed with the city clerk, by the owners of property abutting on the proposed improvement, the evidence proved, and the jury found, that on the 22d day of May, 1884, the defendant in error was served with notice of the passage,' by the city council, of the resolution declaring the necessity for the improvement, and his claim for damages was not filed with the city clerk until the 5th day of March, 1885 ; and, as it thus appeared, that more than two weeks intervened between those dates, his right to the damages awarded him by the verdict of the jury, for the injury that would be occasioned to his abutting property, by reason of the improvement, was waived and forfeited.

This claim is based upon the provisions of sections 2304 and 2315 of the Revised Statutes, which are as follows :

Section 2304. “ When it is deemed necessary by a city or village to make a public improvement, the council shall declare, by resolution, the necessity of such improvement, and shall give twenty days written notice of its passage to the owners of the property abutting upon the improvement, or to the persons in whose names it may be assessed for taxation upon the tax duplicate, who may be residents of the county, and publish the resolution not less than two nor more than four consecutive weeks, in some newspaper published and of general circulation in the corporation; provided, that in case of sewers, the twenty days’ written notice to the owners of abutting property, or to the persons in whose names the abutting property is assessed, shall not be required; and, provided, that when there is no newspaper published in such village, written notice shall be posted in twelve public places in the village; and all plans and profiles relating to the improvement shall be recorded and kept on file in the office of the city civil engineer or clerk, and open to the inspection of all parties interested; and council may appoint a person to serve the notice provided for by this section, who shall make a return of the time and manner of such service, and verify the same by affidavit which shall be filed with the clerk of the corporation, and the same, or a certified copy thereof,shall be prima facie evidence of the service of the notice as therein stated; provided, that in cities of the first grade of the first class, the power to serve and publish such notice shall be vested in the board of city commissioners, provided for in the second chapter of this division.”

Section 2315. “ An owner of a lot, or of land, bounding or abutting upon a proposed improvement, claiming that he will sustain damages by reason of the improvement, shall, within two weeks after the service or the completion of the publication of the notice mentioned in section 2304, file a claim in writing, with the clerk of the corporation, setting forth the amount of the damages claimed, together with a general description of the property with respect to which it is claimed the injury will accrue; an owner who fails to do so shall be deemed to have waived the same, and shall be barred from filing a claim or receiving damages ; and this .provision shall apply to all damages which will obviously result from the improvement, but shall not deprive the owner of his right to recover other damages arising, without his fault, from the acts of the corporation, or its agent; provided, that if subsequent to the filing of such claim, the owner sells the property, or any part thereof, the assignee shall have the same right to damages which the owner would have had without the transfer.”

The rule by which these sections are to be construed, is found in section 2327, which provides, “ Proceedings with respect to improvements shall be liberally construed by the councils and courts, to secure a speedy completion of the work, at reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded; but the proceedings shall be strictly construed in favor of the owner of the property assessed or injured, as to the limitations on assessment of private property, and compensation for damages sustained.”

The last clause of this section, plainly requires, that a strict construction be placed upon the proceedings by which it is sought to deprive the owner of his right to damages for property taken for, or injured by, the improvement; and, therefore, in order to create a forfeiture of his claim for damages, it must appear that the conditions upon which such forfeiture depends, have been strictly performed. The duty enjoined by section 2315, upon the owner of property abutting upon the improvement, who claims that he will sustain damages by reason of the improvement, is, that he shall file with the clerk of the corporation, his claim for damages, within two weeks after the service or completion of the publication of the notice mentioned in section 2304; and it is only when he fails, for the period specified, after such notice-has been given, to so file his claim, that he shall be deemed to have waived the same, and be barred from receiving damages. Hence, to establish the bar, and create the forfeiture, the requirements of section 2304, with regard to the notice, must be strictly complied with.

That section requires, as we have already seen, that when it is deemed necessary by a city or village to make a public improvement, the council shall declare, by resolution, the necessity of such improvement, and shall give twenty days ivritten notice of its passage, to the owners of property abutting upon the improvement, who may be residents of the county, and publish the resolution, not less than two, n'or more than four consecutive weeks in some newspaper published, and of general circulation in the corporation; and by the last clause of the section it is provided, that in cities of the first grade of the first class, the power to serve and publish such notice shall be vested in the board of city commissioners. At the time these proceedings were had, section 2231, as amended March 8,1880, (77 Ohio L. 35), was in force, which conferred upon the board of public works, the powers and duties pertaining to the board of city commissioners.

In order to make the failure of an abutting property owner to file his claim, a bar to his right to the damages done his property by the improvement, it is essential that the notice given him of the passage of the resolution declaring the necessity of the improvement, be a written notice, and- served, or at least authorized by the proper authority. The record does not show that either of these requisites were complied with, in the case before us. The most that was established by the evidence and special verdict, is, that Sherike was “ served with notice,” which falls short of showing a strict compliance with the requirements of section 2304.

We are of opinion, therefore, that, if it was competent for the city, on the trial before the jury, to contest the claim of the defendant in error, upon the ground that it was barred, by reason of his failure to comply with the statute, the facts necessary to establish the bar, are not shown by the evidence, or special verdict.

We are also of opinion, that when, in a proceeding to assess damages, under section 2318 of the Revised Statutes, the municipal corporation makes the owner of property abutting upon the improvement, a party to the application for the jury, and submits the assessment of his damages to the jury, it cannot, after a verdict is returned in his favor, defeat his recovery, on the ground that his claim is barred by reason of his omission to file his claim with the clerk of the corporation within the time prescribed by section 2315. The benefits of that section, like the bar of the statute of limitations, may be waived, by failure to insist upon it at the proper time, or in the proper mode.

If the city of Cincinnati desired to controvert the right of the defendant in error to have any damages assessed him, because he did not file his claim within the proper time, it should have done so, by declining to file the claim out of time, or excluding it from the application for the jury, or dismissing it before submission to the jury. It chose, however, to file the claim, include it in the application, and submit the amount of damages to the determination of the jury; and the judgment of the circuit court for the damages assessed by the verdict was not erroneous.

Judgment affirmed.  