
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1894.)
    Before Smith, Swing and Cox, JJ.
    Bartley et al. v. City of Cincinnati.
    Where the grade of a street, once duly established, was changed, not to benefit the abutting property, but to conform the grade of the street to the general system of grades which the city had established for the streets in that part of the city, and which new grade so established was not better than the old grade, and did not specially benefit the abutting property, the damages awarded to abutting property owners as resulting to them from such change of grade, and the expense of such change of grade cannot be assessed on the property abutting on such street.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

This was an action to enjoin the collection of certain portions of an assessment for the improvement of Falke street, in the city of Cincinnati. Said street was an unimproved street, and had been for forty years; was a main thoroughfare, and improvements were made to conform to the grade of the street. The case is in this court on error to the judgment of the court of common pleas.

The court of common pleas having found that the grade of Falke street, as re-established, was not better than the grade before, and now of no special benefit to the property abutting on the street, we are unable to see how the court could make an assessment against the abutting property to pay for damages resulting from the change of grade, said damages having been awarded to abutting property owners other than the plaintiffs herein, the latter having neglected to put in any claims for damages. For the same reason, we are unable to see why the abutting property should be assessed for the expense of changing the grade. It likewise was of no special benefit to the abutting property. The abutting property already had as good a grade as they had after the improvement. The change in the grade was not made to benefit the abutting property, but was made in order to conform to a general system of grades which the city had established, and which was made necessary by the laying out and improving other streets and changing grades of streets which connected with Falke street— the improvement not being of any special benefit to property on Falke street. If the city under these circumstances deemed it necessary to make the change, it should bear the-expense. We therefore find that the judgment of the court of common pleas should be reversed, as to the amount charged on the abutting property, for damages resulting from the change of grade, and for the expense of changing the grade. The court having found the facts, the judgment will be modified in accordance with the foregoing finding.

I. J. Miller, for plaintiffs.

City Solicitor, for City.

[By the judgment of the court, the assessment for macadamizing only of the street as newly graded was left on the property.]  