
    Thomas B. Richards et al. v. The City of Cincinnati.
    1. When a public street has been improved, abutting proprietors can not resist an assessment to pay the costs and expense thereof, on the ground that the site of the street was changed from a canal to a street without a new condemnation, or that the municipal authorities had granted to a railroad company the right to lay a track upon the street. Bor any injury which such proprietors may have sustained by such changes in the use of the land, their only remedy is by action for damages.
    2. Where the state granted a part of its canal to a municipal corporation for a street, but made the right to improve the street to depend on the approval of the plan of the improvement by the board of public works, abutting property owners, after the general features of the plan have been so approved and the improvement has been completed, can not resist a special assessment by showing that the details of the plan, in so far as they affected -the interests of lessees of the water power, had not been approved by the board of public works.
    3. Where lands within a municipal corporation are laid out into lots, streets and alleys, and the streets are dedicated to the public by a deed which contains a condition that the lots shall be exempt from charges for the improvement of the streets unless a majority of the abutting owners shall assent thereto in writing; such dedication of the lands for streets and alleys will take effect, bul; the condition is inoperative.
    4. Where a strip of land ninety-one feet in width was dedicated for a street, and the municipal authorities improved a street thereon of the width of ninety feet, leaving one foot on one side thereof unused, except in sloping the embankments and excavations, the owners of property abutting on such foot of land are liable to be assessed as owners of property abutting on the improvement.
    
      Error to the District Court of Hamilton county.
    The original action was brought by the city of Cincinnati for the use of Einnell & Dwyer, against the plaintiffs in error, to enforce the lien of assessments made for the improvement of Eggleston Avenue, between Fifth and Broad streets, upon the abutting lots in proportion to the frontage.
    The questions of law decided in the case arise upon the following state of facts : For more than thirty years, previous to March 24, 1863, the State of Ohio had been in the possession and use of a strip of land, seventy-one feet in width, in the city of Cincinnati, extending from Broadway in a southeasterly direction to the Ohio River, for canal and water privileges; the same being a part of the public work of the state known as the Miami and Erie Canal. This strip of land extended, in width, from the center line of the canal locks, thirty-nine feet to the northeast and thirty-two feet to the southwest. The tow-path of the canal was on the southwest side, where the public, for a long time, had been accustomed to travel with horses, wagons, etc. This travel and use by the public had also encroached upon the edge of lands adjacent to the tow-path on the southwest.
    While these uses and privileges were being enjoyed by the public the lands between the present Broadway and Fifth streets, through which the canal passed, were owned, in separate tracts, by the heirs of one Peter Baum, Clark Williams, and Wade and Williams respectively.
    In 1836, the heirs of Martin Baum, seven in number, made partition of the tract owned by them;, according to the plat of a subdivision, in which certain streets and alleys, including a strip twenty feet in width adjacent to the canal on the southwest side, wure set apart for public use; and afterward, in 1840, three of such heirs, then surviving, dedicated, under the statute, such streets and alleys to public use, stipulating, however, in the deed, that they and their heirs and assigns should not be charged for grading or filling up the same, “without the owners of one-half the front feet on any such street shall express their consent in writing.” No such consent has ever been given.
    In 1837, Clark Williams subdivided his tract into lots, streets and alleys, and dedicated the streets and alleys, including a strip of twenty feet in width adjacent to the southwestern line of the canal, to public use; subject to a stipulation or condition, however, “ that they (the streets and alleys) shall not be altered in direction, width, or grade, except by petition, and at the expense of the petitioners.”
    In the same year, Wade & Williams also subdivided their tract, and dedicated the streets and alloys, including a strip twenty feet in width, adjacent to the southwestern line of the canal, to public use.
    All the lots, on which the assessment was resisted in the original action, were embraced in these subdivisions.
    On March 24, 1863, the general assembly passed an act authorizing the governor of the state to convey to the city of Cincinnati all that part of the Miami and Erie Canal extending from the east side of Broadway street to the river, which includes the part between Broadway and Eifth streets, to be improved as a public highway, and for sewerage purposes; provided, however, that the plan of the improvement should first be submitted to and approved by the board of public works of the* state. In pursuance of this act, the deed of grant was made on the 25th of April, 1863, and afterward, in the month of August, the plan for the proposed improvement was submitted by the city to the board of public works ; whereupon, on the 15th of December, 1864, the board took the following action thereon :
    “ Ordered, That the plan ofíéred and on file in this office, dated August 24, 1863, be and the same is hereby accepted as far as it regards its general features, reserving the right to approve or disapprove any details of construction which may, in any manner, affect the interests of the lessees of water power, and that while the work of construction may be commenced at any and all points belo w Third street, there shall be no work done above said Third street until further examination, with a view to settling details.”
    The record does not show that any further action was had by the board of public works.
    In the meantime, the public highway thus proposed to ' be established and improved, was named Eggleston avenue, and on the 19th of February, 1864, an ordinance was passed, of which the following were the first two sections :
    “ An Ordinance, No. 321. To open, widen, and establish Eggleston avenue the full width of ninety (90) feet from tire Ohio river to Broadway.
    “ Section 1. Be it ordained by the city council of the city of Cincinnati, that Eggleston avenue be opened, widened, and established the full width of ninety (90) feet from the Ohio river to the east line of Broadway.
    “ Section 2. That for the purposes aforesaid there be and is hereby condemned to such public use all the real estate lying along and in the line of the Miami and Erie Canal, from the Ohio river to the easterly side of Broadway, as is included between two lines parallel to a line drawn through the center of the canal locks, as now located, the one being distant thirty-nine (39) feet to the northeastward of said lock line, and the other distant fifty-one (51) feet to the south westward of said lock line, as marked and designated upon a plat on file in the office of the city civil engineer, making a strip of ground of ninety (90) feet width between the said termini, to be appropriated for the uses and purposes of a public street.”
    Under this ordinance, all the lands within the boundaries of the proposed street, which were not otherwise dedicated to the public use, were appropriated in accordance with the provisions of the statute in such ease made and provided.
    Such further proceedings were had, that on the 21st of March, 1872, the city entered into a contract with Finnell & Dwyer for materials and labor necessary to complete the grading of Eggleston avenue, from Fifth street to Broadway, at the rate of twenty-seven and a half cents per cubic yard. The specifications for grading were as follows :
    “ The street will be graded to the established grade, the full width of ninety feet, exclusive of side slopes, and including the proper grading and shaping of sidewalks, drains, and roadway, in accordance with the directions of the city civil engineer, and the general plan on exhibition in his office. In excavation, the sides must be neatly and evenly dressed to a slope of one-half’horizontal to one vertical, or such other slope as the character of the soil will require, or the engineer may direct.
    ' “ In embankment, the sides must be neatly and evenly dressed to a slope of one horizontal to one vertical, or such other slope as the character of the soil may require, or the engineer direct, and will, in all cases, be formed of pure earth, clay, sand, gravel, or rock, and no perishable or vegetable matter admitted therein. The work must be commenced at the slope stakes, and be deposited in layers or courses not exceeding two (2) feet in thickness, and the layers or courses must be concave in form, commencing at the sides, and keeping the same at least one (1) foot higher than the center, until the sides are up to the required height, when the remaining portion of the earth will be deposited in such manner and form as the engineer, street commissioner, or other authorized agent of the city may direct. The contracto'r must make all the necessary allowance for shrinkage and settlement in the embankment, as they will in no case be considered complete until the proper height after consolidation. If practicable, the whole must be thoroughly rolled and rammed to the proper grade and shape, with a road rolling machine.”
    The wox'k under the contract was completed to the satisfaction of the city, axxd an assessment for the benefit of the contractor’s levied upon abutting lots at the rate of $2 75.5^ per foot front, aggregating $8,933.36.
    This assessment was the amount of 33,148 cubic yards at the contract price after deducting 2 per cent., payable by the city,
    
      Erom the judgment in the court of common pleas an appeal was taken to the district court. The district court, having found that there were irregularities in the proceedings of the city council, inquired, upon testimony, what amount, under sec. 550 of the municipal code, was properly chargable against the defendants. And after deducting from the estimate of work as made by the city civil engineer, 5,000 cubic yards, on account of materials alleged to have been furnished by the city, decreed in favor of the plaintiff in the sum of $7,585.92, with interest from December 28,1875, which decree reduced the assessment to $2 24.127 per front foot.
    During the trial, the defendants excepted to the introduction of certain testimony, and also to the refusal of the court to hear certain evideuce offered by them tending to prove that in 1867 the city council granted the right to place upon the street, after grading, railroad tracks, and that since the grading has been completed the street from Broadway to Fifth is occupied by railroad tracks and switches.
    Both parties moved the court for a new trial, and the motions being overruled, each party excepted, and the whole of the testimony, by a bill of exceptions, was placed on the record.
    The defendants below obtained leave to file a petition in error in this court, and leave was also granted to plaintiff below to file a cross-petition in error. The matters alleged for error appear in the opinion of the court.
    
      Goodman § Storer, and JReemelin § JReemelin, for plaintiffs in error.
    
      JBJenry M. Cist, for defendant in error.
   McIlvaine, J.

The first objection urged by plaintiffs in error, defendants below, against the assessment is, that the land upon which Eggleston Avenue was constructed has been appropriated to unauthorized uses.

That the change of use from a canal to a uublie street was within the power of the public authorities, as we understand, is not disputed. And it makes no difference on this point, whether the original use was acquired by grant of a conditional fee, or as a mere easement. Malone v. City of Toledo, 28 Ohio St. 643. But particular reliance is placed on the fact, which defendants below offered to prove, that previous to the making of the improvement, the- city had granted the use of the avenue for railroad purposes, and that such use was afterward enjoyed by the railroad company. This latter change of use is justified on the same principle as the former. True, abutting property owners may have been injured by the change, and for such injury entitled to damages; but, having permitted the change to be made, they are not released from liability to assessment for the improvement of the street—their only remedy now being by action for damages.

2. It is further objected, that the improvement was unauthorized, being in violation of the condition in the grant from the state, to wit: that the right to improve the street depended on the approval of the plan by the state board of public works. This objection is not well taken. The plan of improvement submitted by the city was approved by the board in respect to its general features, The only right which the board.sought-to reserve was the approval or disapproval of details, which might affect the interests of lessees of the water-power. This reservation was not intended for the benefit of the general public or of adjacent property owners; nor could it affect their interests injuriously. And, admitting that the state might have restrained the improvement of this portion of the avenue until such details were examined and settled, it is quite clear, that the state having permitted the improvement to be completed without objection, the general public and adjacent landowners could have no standing to resist the payment of the cost of the improvement out of the general revenues of the city, or by special assessments.

3. It is further contended that those abutting proprietors, within the subdivisions of land by the heirs of Martin Baum and by Clark Williams, are not liable to assessment by reason of tbe conditions in tbe deeds of dedication of tbe strip of land along the southwest side of the canal, and now embraced within the avenue. The condition named in the deed of Baum’s heirs is that such proprietors shall not be be chargeable for an improvement, unless the owners of half the frontage shall express their consent thereto in writing; and, in Williams’ deed, that the expense of such improvement must be paid by those who petition for the same.

In our opinion, these dedications to public use took effect, but the conditions named were inoperative and void. The dedicators undoubtedly intended to make the grant to the public absolute and perpetual, but sought to secure to themselves, their heirs and assigns, quoad other property, an immunity from public burdens, from which it is against the policy of our law that any one should be exempted. The public necessity that streets and highways should be improved and kept in repair, is equal to the necessity for their establishment; and private property can not be exempted from liability to share in the burden of the improvement and repair of highways, any more than it can be exempted from liability to be appropriated for the establishment of a highway, where public necessity demands it. And it is no answer for these parties to say that, when the public accepted the dedications, it assented to the conditions. The public had power to accept the grant, but no power to assent to the conditions proposed. While, therefore, the lands dedicated have become a part of the public street, the proposed exemption of other lands from the public burden of maintaining it are inoperative and void.

4. It is also contended by the property owners on the southwest side of the improvement that their lands do not abut on the improvement, and therefore they are not liable to the assessment.

The street or avenue was graded to the full width of ninety feet, exclusive of slopes. These ninety feet included the canal land, seventy-one feet in width, and nineteen feet of the strip dedicated and condemned on the southwest of the canal, leaving one foot, on the west side of the strip dedicated by Baum’s heirs and others, not included in the surface of the street. But it appears that this foot was occupied by the slopes, both in embankments and excavations. Whether this use of the intervening foot strip extended throughout its entire length, does not, however, appear in the record.

It seems to us that, in order to exempt thfese proprietors from assessment as abuttors on the improvement, it must appear that this intervening foot of land deprives them of full, free, and lawful access to the street improved; but such deprivation could result only when the right and exclusive use thereto have reverted to the original dedicators and their heirs. If the public right to its use still continues, or if the right to the strip has vested absolutely in the owners of lands abutting upon it, after abandonment by the public,.then, in either case, their liability to assessment is certain. That this foot of land, before the improvement of the avenue, was subject to the use of the public, as part of a highway, is not disputed; and we are unable to find any ground upon which it can be held that such right in the public has terminated. The greater part, if not the whole of this foot strip is utilized by the public in making slopes to the embankments and excavations of the street— a use quite as important and germain to public travel and convenience as if located in the center of the street. Our conclusion, therefore, is that whether this strip be or be not, strictly speaking, a part of Eggleston avenue, it presents no hindrance or let to the full, free, and lawful access of these proprietors to the avenue.

5. And, lastly, it is claimed by plaintiffs in error, that the work done by the contractors was not worth twenty-seven and one-half cents per cubic yard. It was conceded on the trial that work of the quality named in the contract, to wit, material of pure earth, sand, gravel, or rock, with no perishable or vegetable matter therein, was worth the contract price. The testimony very clearly shows that, within the fills made on the avenue, a great quantity of very worthless material was placed, such as is described by witnesses as ashes, straw, garbage, rubbish, offal, etc.; but a close examination of the testimony further shows that these worthless materials had been placed on the avenue by the city and others, before the contract of Einnell and Dwyer was made, and that they received no credit therefor in the estimate of their work.

Much is said by counsel about the use of cellar-dirt; but it would be a great mistake to hold that the witnesses thereby meant the cleanings of old cellars, as it is perfectly manifest from the testimony that earth excavated in the making of new cellars was meant.

The only material used by the contractors, not particularly named as proper material in the contract, as shown by the testimony, was bricks and mortar, which it appears are nearly equal in durability and value to anything named in the specifications. On the whole testimony, we are fully satisfied that the court below did not overestimate the value of the materials used by the contractors.

6. The remaining question in the case arises on the cross-petition in error: Did the district court err in deducting from the estimate of the work, 5,000 cubic yards, on account of material placed on the improvement by the city ?

That a great amount of material had been deposited on the avenue before the contractors entered upon the performance of their contract is not disputed; but the testimony of the civil engineer and other witnesses as clearly shows that all such deposits; were excluded from the estimate of the work done by- the contractors.

There was offered in evidence entries from what is called a “Dump Book,” kept by the city, from'which it appears that dirt was being dumped by the city upon Eggleston avenue, from November, 1871, to June, 1875., But upon what part of the street, neither the book, nor any witness, shows. It does appear, however, that the city deposited a great quantity at other points, both, before and after the contract of Ifinnell & Dwyer wqs. performed^ a.U.d it also appears, from the dump book, that during the time this contract was underway, the city furnished to “Finnell” 3,923 loads of dirt, which averaged from one to one and a half cubic yards per load. It is quite probable that these loads furnished the amount of 5,000 cubic yards, deducted by the district court. If this be so, we think the district court was quite wrong in its conclusion of fact; and, if this testimony did not furnish the data upon which the court acted, we have been wholly unable to find the least particle of evidence to justify the deduction.

With regard to the 3,923 loads furnished by the city to “Finnell,” as per dump book, there is no witness who testifies that any part thereof went into the work to be done under the contract with Finnell & Dwyer; while, on the other hand, William J. Dwyer, one of the contractors (Finnell, the other contractor, being then deceased), testified, in relation to the entries in the dump book, as follows: “ On the east side of the avenue Finnell bought a lot of gravel from Mrs. Lucket. lie was to dig out what he wanted and pay her for it, and then he was to have the hole refilled—this did not extend, in the least, into the avenue. Tbe gravel was all taken out beyond the east line of the avenue; the lot was 180 feet front, and ran back 150 to 175 feet; he dug down 10 to 12 feet. In the refilling of it Finnell bought the city dirt; that is charged to him, something less than 4,000 cubic yards, and the city dumped it into that hole together with other dirt. Not one load of it went into Eggleston avenue.”

We are, therefore, constrained to hold, that the finding of the district court, that there had been included in the assessment made by the city, “ 5,000 cubic yards of dirt, of the value of $1,375, which was furnished by the city of Cincinnati, and therefore not chargeable on the property owners,” was contrary to the evidence; and that the sum, thus deducted, should, with interest from December 28, 1875, be added to the assessment so made, and distributed to the abutting lands in proportion to the frontage.

Judgment modified accordingly.  