
    A. N. Robinson, Treasurer, etc., v. John Logan.
    Where the improvement of a public road is petitioned for by the requisite number of land-holders, and the improvement is found by the viewers to be a public necessity, the commissioners are not authorized to cause part only of the improvement to be made and to levy an assessment to pay for such part.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Clermont county.
    The action was brought by the plaintiff in error, in the Court of Common Pleas of Clermont county, to collect an ■assessment for the improvement of a public road.
    The petition was presented to the commissioners at their December session, 1866, and asked for the improvement o"f the “ state road leading from Felicity, Clermont county, by way of Laurel, to intersect the Boat Run and New Richmond road, near Carmel grave-yard, in Monroe township, in said county.”
    At the June session, 1867, of the commissioners, the viewers made their report, as required by section 4 of the act, March 29, 1867. 64 Ohio L. 81.
    The report showed that, in the opinion of the viewers, the proposed improvement was a public necessity. It also showed the damages claimed, by whom and the amount assessed to each claimant, and an estimate of the expense of the improvement, and the lots and lands which would be benefited by the improvement, and ought to be assessed for the expense of the same.
    The commissioners confirmed the report, and ordered the road to be improved to section four, being a distance ■of two miles and one hundred and twenty rods; and further ordered that as soon as the petitioners should settle all claims for damages and rights of way, the whole road should be improved.
    ■ The assessment which it was sought to collect was to pay the expense of the two miles and one hundred and twenty rods of the road ordered to be improved as above stated. No other part of the improvement was made, or subsequently ordered. The part of the road improved was but a small portion of the "whole, the distance from Felicity to Laurel being twelve or fourteen miles.
    The payment of the assessment was resisted upon the ground, among others, that the making of the part of the improvement, and the levying of an assessment to pay for such part, was unauthorized.
    In the court of common pleas the plaintiff recovered judgment. On error the district court reversed the judgment ; and the object of the present proceeding is to obtain the reversal of the judgment of the district court.
    
      S. F. Dowdney, for the motion.
    P. F. Swing and J. A! Penn, contra.
   White, C. J.

The judgment of the court of common pleas was properly reversed by the district court.

Before the commissioners could order the improvement the petition therefor was required- to be signed by a majority of the land-holders resident of the county whose lands were to be assessed to pay for the same; and the report of the .viewers was required to show the public necessity of the improvement. ITpon these conditions being complied with, and the other steps taken which the statute requires, the commissioners were authorized, if, in their opinion, public utility required it, to enter upon their records an order that the improvement he made.”

These conditions were prescribed for the protection of the land-holder, and of this protection he can not be deprived by the commissioners.

Where a specific improvement is petitioned for, and its public necessity found by the viewers, to allow the commissioners to make only a small fraction of the improvement, and to levy an assessment to pay for it, will in effect

deprive the land-holcler of the protection intended by the-provisions referred to.

The improvement petitioned for and reported upon was an entirety, and for the part made, disconnected from the-remainder, the land-holders were not liable to be assessed.

The principle laid down in the case of Cincinnati v. The Cincinnati and Spring Grove Avenue Company, 26 Ohio St. 345, applies to this case.

Leave refused.  