
    ASSESSMENT OF FARM LAND FOR IMPROVEMENT OF THE LINCOLN HIGHWAY.
    Common Pleas Court of Wayne County.
    Henry Bitner v. Charles Fahr, Auditor, W. A. Wilson, Treasurer, and the Trustees of Plain Township, Wayne County.
    Decided, April Term, 1917.
    
      improved Roads — Assessments According to Benefits — Luty of Toionship Trustees — Injunction Allowed,. When.
    
    1. Under Section 1208 of the General Code of Ohio, as amended May 8, 1913 (103 O. L., pp. 449-456), which requires the township trustees to apportion the amount to be paid by the owners of abutting property, for the improvement of highways therein referred to, according to the benefits accruing to the owner of land so located, it is not sufficient to assess each tract of land according to its frontage when such an assessment would be unjust and inequitable
    2. The trustees are required to exercise their judgment as to the amount of benefits each tract or lot of land receives, and must apportion the amount to be assessed accordingly. Where the improved highway was established by the early settlers without regard to direction or section lines and because of its diagonal or irregular course abutting tracts of land are irregular in form and size this rule is imperative.
    3. When the trustees refuse, or fail, to exercise their judgment, and levy -assessments according to the foot-front of the property, the court will enjoin their collection when grossly excessive, unjust and disproportionate to the benefits received.
    
      Joseph O. Fritz, for plaintiff.
    
      Benton G. Hay. Prosecuting Attorney, contra.
   Critchfield, J.

The plaintiff filed his petition in this court against the county auditor, the county treasurer and the trustees of Plain township, in which he avers that he is the owner of about thirty-two acres of land in said township abutting upon the Lincoln highway; that said Lincoln highway has been improved by paving the same with brick; that under Section 1208 of the 103 Ohio Laws, page 456, the trustees levied an assessment against said tract of land for $352.20. He avers that this assessment was levied along with assessments against other lots and lands abutting upon said improvement by the trustees in proportion to the foot-front of the several tracts of lands. He further avers that the assessments were grossly unjust, excessive and inequitable and asks for an injunction to restrain the collection of said excessive assessments.

The trustees of Plain township answer and say that said assessments were made in proportion to benefits and are just and equitable and not excessive.

It appears from the testimony on the trial that the trustees gave notice and held meetings as required by the law then in force, and at a meeting held on the 9th day of February, 1916, adopted a resolution in which it was provided that the several lots and lands abutting upon said improvement should be assessed in proportion to benefits and that the foot-front of the several tracts of land should be made the -basis for computation, further resolving that benefits were in proportion in their judgment to the foot-front. But it appears from the evidence that in calculating the assessment it was made from the engineer’s plat, which gave the lineal frontage of the entire improvement and the lineal frontage of each of the several tracts of land. It appears further that the Lincoln highway was -established by the early settlers and the'westward migration in the-early part of the nineteenth century. It was laid out on the route that appeared the most practicable, perhaps following an Indian trail. Its course was laid with total disregard to direction or section lines and bends and diagonals across the county, as do many other highways in Wayne county.

The tract of land owned by this plaintiff contains about thirty-two acres. It is severed from the south part of the southeast quarter of section three in said township by said highway. It has about twenty-two hundred feet frontage on said highway. It is a long and narrow tract' with the longer side abutting upon the highway. It is used for general farming purposes and a place of residence. The plat of the entire improvement was in evidence. A plat showing the size and form of all the abutting properties was in evidence. Testimony of witnesses showed the improvements on the several tracts, and their several market values. Evidence was offered to show how these lands were benefited, from which it appears that the principal benefits conferred were more advantageous market facilities and increased valuation. A part of the lands assessed were farm lands, and it appears that the benefits were fairly equal to all these lands. A part of the property assessed were village lots in the unincorporated village of Jefferson. From the testimony it 'appears that this assessment is really an assessment by the foot-front; that with respect to the property of this plaintiff it is excessive and unjust in comparison with assessments levied against other lots and lands abutting upon this improvement. It is not sufficient for the trustees to adopt a basis of computation for an assessment of this character such as the foot-frontage of' the properties or any other arbitrary rule and adhere strictly to it. The statute requires that they exercise a judgment with reference to the • benefits conferred upon each of the • several tracts of land to be assessed and apportion the assessment in proportion to those benefits. This is especially true where the highway improved is one which is laid out like the Lincoln Highway and most of the highways in Wayne county. It diagonals and curves with the lay of the land in a general east and westward direction. There are many tracts of considerable size with comparative small frontage. 'There are other small tracts like the plaintiff’s with a long frontage, and to impose a large assessment upon the small tract and a small assessment upon the larger tract because of the length of the front is unjust and inequitable and not in accordance with the rule of the statute.

The temporary injunction will therefore be made perpetual against the collection of the excessive portion, which the court finds to be $150.20.  