
    Cady et al. v. City of Hamilton.
    (Decided December 1, 1930.)
    
      Mr. Harry J. Koehler, Jr., for plaintiffs.
    
      Mr. Millikin Shotts, for defendant.
   Hamilton, J.

Plaintiffs in this action, a large number of the residents of Griesmer Subdivision, seek injunctive relief against the defendant, the city of Hamilton. The action grows out of an assessment proposed'to be levied and collected for the construction of sanitary sewers, house connections, manholes, flush tanks, etc.

The sanitary sewers were constructed by council upon the petition therefor by the plaintiffs and adjacent and abutting property owners.

The petition alleges that the assessments proposed to be levied and collected are illegal and void, and are a confiscation of property without due process of law, and contrary to law, and in violation of the rights of the plaintiffs, in that said petition for sanitary sewers filed with the council petitioned and asked for sanitary sewers, house connections, etc., in the streets named in the petition, for the purpose of providing the abutting property with proper sanitary sewers, but that said sewer as constructed is designed of much larger size and depth than necessary and proper to provide sanitary sewers for the property abutting thereon, and was constructed so as to provide main line sewers and outlet for a vast territory outside of the lots and lands abutting upon the same, none of which lots and lands outside of those abutting upon said sewers were assessed for any of the cost of the construction of said sewers ; that the cost and expenses incurred in the construction of said sewers over and above what the cost and expenses would have been for the construction of sewers of sufficient size and capacity for the needs of the lots and lands abutting thereon, as petitioned for, constitute a large sum, believed to be equal to one-third of the cost of the entire improvement as constructed.

The petition prays for a permanent injunction, restraining the defendant from levying assessments against the lots and lands of the plaintiffs for the construction of said sanitary sewers in excess of the amount found by the court to be legally assessable.

The city makes two defenses to this action. It sets up, first, what may be designated an estoppel by waiver. This claim is based on the fact that the property holders petitioned for the improvement; asked that the entire cost of the improvement, including the city’s portion thereof, be assessed on the front foot basis, and that said assessment be levied and collected without reference to the value of the property of the subscribers thereto, and waived all benefits of the statute limiting assessments to 33 1/3 per cent of the actual value of the property assessed; asked that the assessment be made payable in ten annual installments or in cash, proportioned to the whole assessment; waived all benefits conferred by General Code, Section 3819; ratified and approved the resolution of necessity and ordinance determining to proceed; waived any constitutional benefits and any claim for damages on account of said improvement; and consented that they be forever barred from filing a claim or receiving damages for said improvement. The first defense further sets up that the petition, containing the waiver, was presented to council, and thereupon, after receiving the petition, council proceeded with the construction of the improvement, and the assessment was duly made.

As a second defense the answer pleads that the plaintiffs are barred from asserting that said assessment is excessive for the reason that said assessment was made and filed as required by law; that notice was duly given to the property owners, including plaintiffs; that the assessments were duly made and filed as required by law; but that plaintiffs did not make their objection to said assessment and file said objection in writing with the clerk of the council of the city of Hamilton within two weeks after the expiration of said notice.

To these defenses, the plaintiffs, by way of reply, denied generally.

The facts are not in dispute except as to the amount of excess cost, if relief should be granted.

We are of opinion that the defense of estoppel is not maintainable in this action.

The petition was based upon the construction of sanitary sewers for Griesmer Subdivision, which subdivision contained approximately 52 acres of land.

It is admitted that the sewer as constructed was designed for taking care of approximately 200 acres of unimproved territory, on the basis of future development, which may or may not occur. The estoppel must be held to only apply to the sanitary sewer for the territory petitioned for.

The inequity of assessing the petitioners for the construction of sanitary sewers designed to take care of the outside 200 acres or more of undeveloped land is so apparent that it needs no further discussion.

The plaintiffs entered no waiver concerning the construction of the sewer to eare for this outside territory.

The second defense is that the parties are limited to their action at law under Section 3848, General Code, providing: “If any person objects to an assessment, he shall file his objections, in writing, with the clerk, within two weeks after the expiration of such notice.”

Objections were filed, but whether or not within the time prescribed by the statute it is difficult to ascertain with certainty from the evidence. The objections filed seem not to have been acted upon by council. Neither was there any appointment of freeholders to ascertain the amount of the assessment, for the reason that the assessment was made on the front foot basis, and not according to benefits. The assessment was not made until after the sewer was constructed, and the plaintiffs could have no knowledge of the amount of the assessment until the assessing ordinance was passed.

The case of Baxter v. Van Houter, Aud., 115 Ohio St., 288, 153 N. E., 266, would, by analogy, support the rights of the plaintiffs to maintain this action. The syllabus of that case is:

“Under Sections 6602-1 to 6602-23, General Code, where a special assessment for a sanitary sewer is made after the improvement is completed, a taxpayer whose real property is assessed in excess of the value of the property as improved may apply for injunction under Section 12075, General Code, without first exhausting his statutory remedies. ’ ’

In the course of the opinion it is said, at page 294 of 115 Ohio State, 153 N. E., 266, 268:

“An assessment against property in excess of the value of the property after the improvement is made constitutes, in fact, not a special assessment, but the taking of property for public use without compensation.”

While the ease here under consideration is not a question of the cost of the improvement exceeding the value of the property assessed, it involves the placing of an assessment for collection against property for which the property was not liable. It would appear by analogy as much the taking of the property without compensation in this case as if it were a case of the assessment exceeding the value of the property. While we do not consider it necessary, if a distinction should be made between the case at bar and the Baxter case, supra, and.the cases therein cited, that distinction would favor the plaintiffs in this action, for the reason that a part of the assessment is illegal and without warrant of law in that it is an attempt to add the cost of an improvement for the benefit of other property to the properties of plaintiffs here.

It is conceded that the sewers were much larger and greater than was necessary for the improvement petitioned for, and were so made and designed to take care of outside property — in addition to the needs of the Griesmer Subdivision.

On both questions of the defense we find in favor of the plaintiffs and against the defendant, and also find that plaintiffs are entitled to injunctive relief, as prayed for.

The uncertain proposition is the amount of the excess cost. The total cost of the sewer as constructed was $68,132.90. While the evidence of the engineers is not in agreement as to the excess cost, our conclusion is that the estimate of former city engineer Willard most nearly approximates the excessive cost. This excess, as found by the engineer, is $22,476.25. This amount deducted from the cost of the sewer as constructed, $68,132.90, would leave a balance of $45,656.65, and this is the amount we find to be legally assessable. All in excess of this sum will be enjoined.

A like decree to that entered below may be entered here.

Decree accordingly.

Ross, J., concurs.  