
    Spangler v. City of Cleveland.
    
      Injunction — Burden of establishing right to — When granted.
    
    1. The burden of establishing a right to a perpetual injunction, claimed by a party to an action, is upon such party.
    2. A court will grant a perpetual injunction only when a party shows a clear right thereto.
    Error to the District Court of Cuyahoga county.
    This ease was before this court at a former term, and was remanded to the district court. Spangler v. City of Cleveland, 35 Ohio St. 469. Some questions, as to the assessment to pay the expense of opening Hough avenue, were still in dispute, and in .the district court new pleadings' were filed.
    Plaintiff sought to enjoin the collection of such assessment to pay the expense of opening Hough avenue, and for an amendment to her petition averred:
    “ There has never, by anybody, been a valuation of any special benefits conferred by said opening of Hough avenue, nor has there ever been a determination that said assessment was apportioned in proportion to the special benefits derived from such opening, or that said assessment did not exceed said benefits, and in truth and in fact said assessment was not on the property benefited thereby, but only on the property fronting on said street.”
    The city answered as follows: “Now comes said defendant, and for its answer to the amended petition of said plaintiff, says : That it reiterates and reaffirms all and singular the statements and allegations made and contained in its answer heretofore filed in this qase, and makes the same a part of this answei’, and denies each and every allegation contained in the amendment to plaintiff’s petition, and for further answer, says: That plaintiff had knowledge of all the steps taken by the city and said village of East Cleveland in making said improvement and assessment while the same was in progress and made no objection thereto.
    
      “ That said premises were greatly benefited by said improvement ; the assessment therefor only covered the actual damages and cost thereof; the amount assessed is no more than was properly chargeable on said premises; the benefits conferred exceeded the amount assessed upon said premises, and the plaintiff knew the said damages and costs were to be assessed upon the lands benefited by said improvement.
    “ That after the said estimated assessment was reported to said council, the city clerk was directed to and did publish notice of the making thereof as required by law; that said plaintiff' failed to file any objection thereto whatever.
    “ That by reason of her failure to object to or remonstrate against all or any of the proceedings of said village and city, while making said improvement and assessment, .and standing by in silence while the same were being made with full knowledge thereof, she is now estopped to deny the validity of said proceedings or said assessment.
    “Defendant further says that there is another suit pending in the court of common pleas of said Cuyahoga county between the same parties, for the same cause of action set forth in said amended petition, as by the record of said court will appear.
    “ Wherefore defendant prays that the prayer of plaintiff’s petition be not granted, but that this defendant be awarded judgment against plaintiff for the amount of said assessment now found due and payable, and for such other and further relief as equity may require.”
    Plaintiff replied, denying each and every averment of the amended answer.
    On the trial the testimony was as follows:
    “ It was agreed that the assessment was levied by the city separately on plaintiff’s two parcels of land, one north and one south of Hough avenue; but that on the county tax duplicate the whole of the assessments on both parcels stood as one assessment against thetwo parcels in gross, and that there was included in the assessment an item of one per cent to pay the estimated cost of collecting the same.
    “ Plaintiff offered the resolution of 9th September, 1878, appointing an assessing committee to make án estimated assessment, contained in Journal U, page 399, and City Record, page 192; also the resolution of 9th December, 1873, directing notice of said report to bo published, contained in Journal N, page 574, and City Record B, page 257; also the notice, dated 9th December, 1873, from City Record B, page 260 ; also the resolution of 12th February, 1874, appointing an equalizing board from Journal V, page 82, aud City Record C; also the record of the filing the report of said equalizing board and setting aside the report of the assessing board 10th March, 1874, from Journal Y, page 122, City Record C, page 44; also resolution of 10th March, 1874, appointing, an assessing board from Journal Y, page 124, City Record C, page 44; also the record of filing said report 24th March, 1874, from Journal Y, page 1551, and City Record C, page 54; also the notice of such filing dated 24th March 1874, from City Record C, page 56; also the resolution of 5th May, 1874, appointing an equalizing board, Journal Y, page 261, City Record C, page 87; also the record of the filing said report 21st May, 1874, from Journal Y, page 300, City Record C, page 100; also the ordinance levying said assessment from Ordinance book E, page 52.
    “ Plaintiff further offered in evidence the original report of the assessing board appointed March 10, 1874, and a copy of the report of the equalizing board appointed May 5,1874, which was agreed to be a true copy, the original being lost.”
    The papers, resolutions, reports, notices, and records offered in evidence are as follows :
    “ Journal ‘ U,’ page 399, September 9, 1873, Bee. B, 192.
    “Whereas,II. D. Hovey, A. C. Gardner, and John Kilby, were, by the late village of East Cleveland, appointed a committee to report an estimated assessment to pay the damages awarded and costs incurred in opening Hough avenue between Giddings and East Madison avenues, upon laud benefited thereby, which said committee have failed to report, and do not wish to serve. Therefore bo it
    “ Resolved, That W. A. Neff', T. D. Peck, and George Watkins be and they are hereby appointed a committee to report to this council an estimated assessment to pay the damages awarded and the cost incurred in establishing and opening Hough avenue between Giddings and East Madison avenues, upon the lots or lands benefited thereby. Adopted.
    “Yeas, 29. Nays, O.
    “ Journal ‘ D,’ page 574, December 9, 1873, Bee. B, 257.
    “ Report of the committee of freeholders appointed for that purpose, consisting of Messrs. W. A. Neff, T. D. Peck, and George Watkins, an estimated assessment according to benefits to pay the damages awarded and costs incurred in opening Hough avenue between Giddings and East Madison avenues.
    “Referred to the city clerk, with instructions to give the notice required by law.
    
      " Record ‘B,’ page 260, December 9, 1873.
    “ Notice to whom it may concern :
    “ W. A. Neff, T. D. Peck, and George Watkins, three disinterested freeholders of the corporation have reported to the council an estimated assessment on the property abutting on Hough avenue.
    “ The assessment is made to pay damages awarded and expense incurred in opening Hough avenue between Giddings avenue and East Madison avenue.
    “ The said assessment is on file in the office of the city clerk.
    “All parties having objections to said assessment must file the same in writing with the city clerk within five weeks of the first publication of this notice.
    “Theo. Voges, City Clerk.
    
    “Cleveland, December 11, 1873.
    
      “ Journal V,’ page 82, February 12, 1874, Fee. C.
    
    “Fcsolvcci, That Thomas M. Marcy, T. D. Peck, and Charles Whitaker, three disinterested freeholders of tlio comity be and they are hereby appointed and constituted a board of equalization to equalize according to law the estimated assessment presented to this council by a committee appointed for that purpose October 11,1873, to pay the damages awarded and costs incurred in opening and extending Iiough avenue from Giddings avenue to Madison avenue, and that they be requested to meet at the Mayor’s office on Saturday the 14th inst., and enter upon their duties.
    “Journal V’ page 122, March 10, 1874, Fee. G, 44.
    “Report of the board of equalization consisting of Felix Nicola, Charles Whitaker, and T. M. Marcy, recommending to set aside the assessment upon lands on Hough avenue, to pay the expense of opening said avenue between Giddings and Madison avenues. Received and filed, and the report of assessing board set aside.
    “Journal V,’ page 124, March 10, 1874, Fee. G, 44.
    “ By Mr. Everett:
    “ Fesolved, That Felix Nieoli, Chas. Whitaker, and T. M. Marcy be and they are hereby appointed a board of assessment to report to this council an estimated assessment upon the property benefited thereby to pay the costs and expenses incurred in opening Iiough avenue between Giddings and East Madison avenues, and that they be requested to meet at the mayor’s office on Saturday next, the 14th inst., and enter upon their'duties. Adopted.
    “Yeas, 27; nays, 0.”
    
      The report was in form as follows, and contained a list of each lot on both sides of the avenue:
    
      
    
    East of Giddings. East of Garland-East of Park-East of Crawford-Bolton lot..... Doming lot — - Spangler lot-1............... 2................ 3................ 10............... 11.............. Pedrick lot... Pedriek lot-Outhwaite lot.. R. Anderson— Jackson.......... Jackson.......... Harkness....... Harkness....... Johnson.......... Strong............ Bishop........... Sechrath......... Schmidt......... FEET FRONT. 438 351 859 132 50 50 m 130 61 •99 162 130 220 170 195 250 537 100 100 153 185 RATE. OTS. 138 138 45 70 70 70 65 60 55 55 40 35 30 25 20 15 10 5 3 2 1 AM T TAX. 604 44 484 38 1,245 55 92 40 35 00 35 00 111 15 78 00 33 55 54 45 64 80 45 50 66 00 42 50 39 00 37 50 53 70 5 00 3 00 3 06 1 85 $8,291 45
    Amount of bonds issued........................................................ $6,500 00
    Interest on same................................................................. 1,040 00
    Advertising......................................................................... 125 00
    Collecting.............................. 82 00
    Expense of old assessing board............................................... 60 00
    Committee fees............................................... 75 00
    Interest.....................................................................•........ 409 45
    $8,291 45
    “To the Honorable Council of the City of Cleveland:
    
    “Your committee appointed to report an estimated assessment of the benefits on the lands bounding and abutting on Hough avenue to defray ];he estimated costs of opening said street between Giddings and Garland avenues, would respectfully submit this .their report.
    “ T. M. Marcy,
    “Feltx Nicola,
    “ C. Whitaker.
    “ Cleveland, March 24, 1874.
    
      “Journal ‘ V,’ page 155, March 24, 1874, Bee. G, 54.
    “ Report of the committee of freeholders appointed for that purpose, consisting of Messrs. T. M. Marcy, Felix Nicola, and Chas. Whitaker, an estimated assessment, according to benefit, to defray the estimated cost of opening Hough avenue between Giddings and East Madison avenues.
    ' “ Referred to the city clerk, to give the notice required by law.
    
      “Brinted Becord ‘ C,’ page 56, March 24, 1874.
    “ Notice to whom it may concern:
    “ T. M. Marcy, Felix Nicola, and Chas. Whitaker, three disinterested freeholders of the corporation, have reported to the council an estimated assessment on the property abutting on Hough aveuue.
    . “ The assessment is made to pay the damages awarded and expenses incurred in opening'and extending of Hough avenue between Giddings and East Madison avenues.
    “ The said assessment is on file in the office of the city clerk.
    “All parties .having objections to said assessment must file the same in writing with the city clerk within five weeks of the first publication of this notice.
    “ Theo. Yoges, City Clerk.
    
    “Cleveland, March 26, 1874.
    “ Journal ‘ V,’ page 261, May 5, 1874, Bee. C, 87.
    J3y Mi\ Lockwood:
    , “Whereas, T. M. Marcy, Felix Nicola, and Chas: Whitaker, three disinterested freeholders appointed forthat purpose, reported to this council an- estimated assessment to pay the damages awarded and the costs incurred in opening of Hough avenue between Gid dings and East Madison avenues; and,
    “Whereas, objection to said assessment has been filed, therefore be it
    “Resolved, That P. W. Payne, James Brokensh'ire, and Louis Ritter be and they are hereby appointed a bbard of equalization .to equalize said' assessment according to law-, and that they be requested to meet at the mayor’s office on Saturday, the 9th inst., at 2 o’clock p. m., to qualify and enter upon their duties.
    ■ “Adopted. Yeas, 34; nays, 0.”
    This report was in form like the other, and as to the above lots was as follows:
    “ SOUTH SIDE OF HOUGH AVENUE.
    
      
    
    
      Amount bonds issued............................................ $6,500 00
    Interest on same................................................................. 1,040 00
    Advertising........................................................................ 125 00
    Collecting........................................................................... 82 00
    Expense of old assessing board.............................................. 60 00
    Expense of second assessing board.......................................... 75 00
    Expense of equalizing board........................................ 75 00
    Interest on money after paying bonds...................................... 409 45
    $8,366 45
    “ To the Honorable Council of the City of Cleveland :
    
    
      “ Your committee appointed to equalize an estimated assessment of the benefits on the lands bounding and abutting on Hough avenue, to defray the cost of opening said avenue between Giddings and East Madison avenues, would respectfully submit this, their report.
    
      " Cleveland, May 15,1874.
    “Jas. H. Brokenshire,
    “ P. W. Payne,
    “ Louis Ritter,
    “ Board of Hqualization,
    
    “Theo. Voges, City Clerk.
    
    “Confirmed,, May 21, 1874.
    “ Journal ‘ V,’ page 300, May 21, 1874, Bee. C, 100.
    “ Report of the board of equalization, consisting of James Brokenshire, P. W. Payne, and Louis Ritter, appointed to equalize an estimated assessment to defray the cost of opening Hough avenue between Giddings and East Madison avenues. Equalized assessment confirmed.
    “ Yeas, 29. Nays, 0.”
    The plaintiff further offered in evidence the map of the south part of the seventeenth ward of the city of Cleveland, including all the land assessed for opening Hough avenue, and of part of the city of Cleveland, contained in the atlas of the city of Cleveland. To the introduction of which defendants objected, the objection was overruled, 'and defendants excepted.
    Neither party offering other or further evidence, both rested tlieir case, which was argued by counsel and submitted to the court.
    The court found that in the assessment on plaintiff’s land on the south side of Hough avenue there was illegally included for the estimated expense of collecting the assessment the sum of three dollars and eight cents, and in the assessment on plaintiff’s land on the north side of Hough avenue for the same purpose the sum of fifteen dollars and fifty-four cents; that the city of Cleveland assessed each of said parcels separately, but that both assessments had been illegally placed on the county tax duplicate as one assessment against the parcels in gross, and that there are no other illegal items in the assessment or illegalities connected therewith; and to each of said findings that there are no other illegal items in said assessment, or illegalities connected therewith, the plaintiff' excepted.
    A motion for a new trial was overruled, and a decree was rendered against plaintiff in part, dismissing the petition as to certain matters complained of, and dissolving in part an injunction theretofore granted, and rendering judgment against plaintiff’ for a part of the costs of suit. A bill of exceptions was taken, and plaintiff now asks a reversal of the judgment.
    
      Mix, Noble $ White, for plaintiff in error.
    
      Kain, Sherwood § Bunts, for defendants in error.
   Eollett, J.

Plaintiff brought her action to enjoin the collection of a special assessment to pay the expense of opening Hough avenue. The petition avers, “ there was assessed on the land abutting on said Hough avenue an assessment,” etc. The property assessed included the land of plaintiff.

As the plaintiff’s right to this relief must be clear, does the testimony given on the trial clearly show such a right? The question is not, can this land be sold for this assessment? Neither is the questiou, would a title under a tax sale- to pay this assessment be valid ? Here the plaintiff asks an injunction to prevent the collection of an assessment, and she rests her ease on the agreement and records set out in the bill of exceptions, and the presumption that these records are all the records there are, and that they show every act that, was done in the case, and how each act was done. Plaintiff claims the benefit of the facts — of what was in fact done — as opposed to presumptions; yet she did not try to show what was in fact done, and she now seeks the benefit of a conclusive presumption, that nothing was done that is not fully recorded and shown by the particular records plaintiff gave in evidence.

The facts asked by plaintiff' to be presumed are such as plaintiff could seek to establish with evidence; and, as it does not appear that any evidence was offered that the court did not receive and consider, we must disregard presumptions, and we must look only to the plaintiff’s evidence for the proof of her right to an injunction.

For a perpetual injunction the courts require that there ‘should be no doubt in the case, and that the plaintiff must make out a clear and unexceptionable right. Dan. Ch. 1681.

Coui'ts will not exercise this necessary authority when 'the right is doubtful or the facts not definitely ascertained.” Burnham v. Kempton, 44 N. H. 92.

“ The right must be clear.” Bonaparte v. Camden and Amboy R. R. Co., 1 Bald. 218.

In her amendment to the petition plaintiff averred, •1. “ There has never, by anybody, been a valuation of any special benefits conferred by said opening of Hough avenue;” 2. “ nor has there ever been a determination that said assessment was apportioned in proportion to the special benefits derived from such opening; ” 3. “ or that said assessment did not exceed said benefits; ” 4. “ and in truth and in fact said assessment was not on the property benefited thereby, but only on the property fronting on said street.” All these averments were denied; and the plaintiff had the burden of proving a clear right to an injunction; and, in proof of the averments -and of such right, in addition to the agreement about the two parcels of land, plaintiff put iu evidence certain records and papers, some that tended to prove and some that tended to disprove the averments. The paper showing.an assessment and the paper showing the equalization of the same, did not prove the assessment to be by the front foot merely, but at least that the same may have been “in proportion to benefits.” The evidence was so indefinite, limited, and uncertain, that the district court could well say the plaintiff did not clearly establish the averments in the amendment to the petitiou, and did not clearly show a right to the injunction asked for. The defendants were not called upon affirmatively to establish a right or a valid assessment. For aught that appears, there may have been record evidence of a valid assessment, which the plaintiff would not introduce, and the defendants need not introduce. It is admitted that all the facts of the case were not before the court, and the court must decide the plaintiff’s right upon what testimony the plaintiff gave the court. The case here lies within a narrow compass, and we think it best not to go outside the case.

The plaintiff asked for an injunction, she had the burden of showing her right to such an exercise of the power of the court. In the opinion of the district court, plaintiff failed to show that she had such a clear right. We think the court did not err.

We do not express auy opinion upon other questions sought to be raised in the case.

Judgment affirmed.  