
    No. 714
    ALLSHOUSE v. EMERALD TWP. (Trustees)
    Ohio Appeals, 3rd District, Paulding County
    No. 34.
    Decided June 7, 1923
    This opinion has not been published except in Abstract.
    154. DITCHES.
    Failure of actual notice as ground for enjoining collection of assessment for cleaning out — Failure to protest apportionment or perfect an appeal precludes action in equity.
   WARDEN; J.

Epitomized Opinion

Action to enjoin collection of assessment for the cleaning out of a ditch. The assessment was made against AÍlshouse’s land upon the assumption that it would benefit the land. Allshouse claimed that he was not bound by the assessment because he was not served with actual notice as required by statute. The evidence disclosed that the notice was sent through the mail. No evidence was offered’ that the notice was not received. Allshouse also contended that the ditch supervisors had no jurisdiction, because their office had been abolished by the codifying act relative to the ditch laws. In refusing the injunction the Court) of Appeals held:

1. There is a presumption that the notice mailed was received by the property owners personally, since there was no evidence to contradict the testimony that the notice was mailed, and no evidence that the notice was not received.

2. Having received the notice it was necessary to protest the apportionment or perfect an appeal. This he failed to do and is therefore precluded from bringing an action in equity in the premises,

3. Since the proceedings to clean out the ditch were commenced prior to the enactment of the law to codify the ditch laws and repeal the section creating the ditch supervisor, the ditch supervisors had jurisdiction. 101 OS. 235.  