
    TAXATION OF LAND APPROPRIATED FOR. STREETS.
    [Circuit Court of Hamilton County.]
    The Commissioners of Hamilton County, Ohio, v. George F. Albers et al.
    Decided, June 11, 1906.
    
      Refunder—To the Owner of a Subdivision—For Land Included in the Streets—Erroneous Direction by Auditor to Assessor—As to 'Valuation to be Placed on Lots—Presumption as to Valuation Made by Assessor—Section 1038.
    1. There is a presumption that in valuing the lots of a newly platted subdivision for the purpose of taxation, the valuation returned by the assessor covers the lots only, and not the land dedicated for street purposes, and without a showing to the contrary the subsequent allowance of a refunder on account of land embraced in the streets is erroneous.
    2. A direction given by a county auditor to an assessor as to the minimum aggregate valuation at which he shall return the lots of a new subdivision is without authority, and the return of the assessor may be corrected under the provisions of Section 1038 in so far as the assessor was influenced in his valuations by the direction of the auditor; but where it is left to inference only as to whether the direction was followed by the assessor or served to influence his valuations, relief can not be granted by the courts to the lot owners.
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
    The defendants in error, George F. Albors and Henry W. Kahle, were the owners of a tract of land of ten and one-half acres, the decennial appraisement of which was $11,860. August 14,1891, they presented to the county auditor a plat, subdividing this tract into fifty-seven lots. The auditor referred the same to the annual assessor and directed him to appraise the lots so that the aggregate tax valuation of said lots should not fall below $U8,860.
    
      Subsequently, the assessor returned said subdivision to the county auditor, and valued said fifty-seven lots separately, the valuation aggregating $21,410.
    An application was made to the county commissioners for a refunder of taxes paid on the decennial valuation of that part of land dedicated to the public for street purposes, amounting to $2,970, and upon the amount of $7,000, being the difference between the decennial appraisement as shown by the record, and that given by the auditor to the annual assessor. The claim was rejected by the county commissioners, and upon appeal to the court of common pleas, the taxes paid on that part of the land dedicated was allowed and the balance disallowed. The commissioners have filed their petition in error, and Albers et al a cross-petition in error.
    In addition to the questions this day decided in the case of Davis and Cassatt v. The Commissioners, anle, one is presented by the petition in error, to-wit: Whether the value of the land dedicated for street purposes should be deducted from the decennial valuation, and a refunder be allowed of the proportionate amount of the taxes paid on the whole? The other by the cross-petition, to-wit: Whether the error of the auditor in directing the assessor to return a valuation of not less than $18,860 while the decennial valuation was only $11,860, was such an error as could be corrected, under Section 1038, Revised Statutes ?
    There is no authority under Section 2797 to return the land embraced in the streets for taxation, but the lots shall be entered on the tax list in lieu of the land. There is no finding of fact that the defendants in error paid taxes upon any of the land dedicated, although, under its conclusions of law, the court states that the appellants paid taxes on the property embraced in the streets. We understand the contention of counsel to be that upon filing the plat with the auditor, it was his duty to deduct from the decennial valuation of the tract of land a proportionate value of the land dedicated to public use.
    If our conclusion in the case of Davis et al v. The Commissioners, is correct, the valuation of the lots in the subdivision is left to the judgment of the assessor, subject to the limitation that he have regard to the next preceding decennial valuation of real estate.
    
      The purpose of subdividing land into lots and dedicating the streets, and the result which usually follows, is to add value to the lots abutting on such streets, and if the assessor should so find, it would be his duty to assess and return the valuation accordingly.
    We are of opinion, therefore, that the court erred in allowing the claim for taxes paid on land embraced in the streets. The direction given by the auditor to the assessor to return a valuation of not less than $18,860 was clearly erroneous, and if it fully entered into the judgment of the assessor in fixing a valuation upon the several lots, it would be such an error as was contemplated under Section 1038, but there is no finding of fact showing that the assessor followed the directions given except as may be inferred from the valuation returned. The total valuation returned was $21,410, which is $2,550 in excess of the sum below which the assessor was directed not to value the lots.
    While we have no doubt that the instructions given influenced to some extent the judgment of the assessor, it would be impossible to determine to what extent or in what amount the Valuaion was thereby increased. Judgment will therefore be affirmed in part and reversed in part.
    Ampt, Ireton é Collins, for plaintiffs in error.
    
      Cobb, Howard <& Bailey, for defendants in error.
     