
    Mrusek v. City of Reading et al.
    (Decided February 25, 1935.)
    
      Messrs. Lorbach & Garver, for plaintiff.
    
      Mr. Herbert Barnhorn, for defendants.
   Hamilton, J.

This case is here on appeal from the Court of Common Pleas of Hamilton county, wherein the defendants, the city of Reading and others, were perpetually enjoined from the collection or the enforcement of the collection of an assessment levied against the property of the plaintiff, Hilda Mruselr, for a street improvement.

The ease was presented on a stipulation of facts, which discloses that the Council of the village of Reading, Ohio, now the city of Reading, adopted ordinances to assess a special tax on real estate bounding and abutting on both sides of Cherry Hill avenue, from Main street, also known as Reading road, to the western terminus of Cherry Hill avenue, for the purpose of providing a sidewalk and a curb and gutter on said avenue; that said ordinances further provided that certain named amounts were to be levied and assessed on each front foot of the several lots and lands bounding and abutting said avenue between the points named; that the assessments are not disputed, and that the property between said Cherry Hill avenue and the plaintiff’s north line is owned in fee simple by William S. Burkhart, Inc. ■

The stipulation therefore discloses that the plaintiff’s property does not bound and abut Cherry Hill avenue, on which the improvement is laid.

It appears in the record that Cherry Hill avenue runs east and west, ending at Main street or Reading road; that on the south side of Cherry Hill avenue William S. Burkhart, Inc., owns a strip of land running the full length of Cherry Hill avenue from Reading road to its eastern terminus, and that immediately south of this Burkhart strip is a valuable residence property, belonging to Hilda Mrusek, fronting on Reading road.

The theory under which the city claims the right to assess the real estate of the plaintiff is that this Burk-hart strip does not interfere with her use, being more or less inconsequential as far as it relates to her property, and that she is greatly benefited by the improvement.

The right of the plaintiff to be protected against the assessment is the fact that she does not bound and abut the avenue improved.

Section 3812, General Code of Ohio, provides three methods for levying special assessments for an improvement of a public street: First, by a percentage of the tax value of the property assessed; second, in proportion to the benefits which may result from the improvement; and, third, by the foot front of the property bounding and abutting upon the improvement.

The assessment in the case at bar was not according to benefits. Therefore, the claim of the city to the effect that the property is benefited cannot give it any right to make the assessment. The assessment is based on the front feet bounding and abutting the improvement.

The law is stated as follows in the case of Cincinnati v. Batsche, 52 Ohio St., 324, at page 343, 40 N. E., 21:

“Recognizing the authority of the council to create an assessing district, it must be exercised in accordance with the requirement of the statute. The statute —section 2264, Revised Statutes — [now Section 3812, General Code], requires the council to set forth by ordinance ‘specifically the lots and lands to be assessed;’ but when the assessment is by the foot front, it must be ‘of the property bounding and abutting upon the improvement.’ In such case, the legislature has prescribed the assessing district, which excludes property not bounding and abutting upon the improvement.”

Since it is admitted and is a fact that the property of the plaintiff does not bound and abut upon the improvement, no assessment for the improvement could be levied against her property.

A perpetual injunction will be granted, perpetually enjoining the defendant, the city of Reading, from levying the assessment for the improvement in question.

Injunction allowed.

Ross, P. J., and Matthews, J., concur.  