
    DAMAGES ON ACCOUNT OF A STREET IMPROVEMENT.
    [Circuit Court of Hamilton County.]
    Robert Carlisle et al v. The City of Cincinnati.
    Decided, March 10, 1906.
    
      Street—Assessment for Improvement of—Damages to Property Owners Included—Cost of Grading and Lowering Street—Assessment for Surface Improvement—Effect of Signing Petition for Improvement at a Different Grade.
    
    1. An assessment for a street improvement may be enjoined in so far as it includes damages awarded to the property owners, or the costs of the -suit to assess compensation therefor, or the cost of grading or lowering the street to the new grade.
    2. In an action to assess damages on account of a proposed street improvement, it is 'competent for the jury] while disregarding the general benefits which may result to the property, to consider an incidental benefit wbicfi is blended with an incidental injury, for the purpose of arriving at the extent of the inj'ury sustained by the property.
    3. The signing by a property owner of a petition for the improvement of a street to a certain grade, does not estop him from contesting the legality of the assessment, where the original petition was referred back to the property owners with the direction to file a new petition for an improvement at a different grade, and the second petition was not signed by the contesting owner.
    Gieeen, J. ■; Jelke, P. J., and Swing, J., concur.
    The questions involved in this ease are stated in the brief of' counsel for plaintiffs, as follows:
    1. Is the assessment legal insofar as it includes the damages awarded to property owners and the costs in the suit to assess compensation to the plaintiffs and others for injuries caused by the improvement.
    
      2. Is the assessment legal insofar as it includes the cost of grading or lowering the street to the new grade ?
    3. What is the effect of the verdict and judgment in the proceeding to assess compensation to plaintiffs, upon the right of the city to make any assessment against plaintiffs’ property for the surface improvement?
    4. What is the effect of the signing by plaintiffs of the first petition for improvement of the street?
    The first question is answered in the negative by the case of The Cincinnati, Lebanon & Northern Railway Company v. The City of Cincinnati et al, 62 O. S., 465.
    The second question is answered in the negative, also, by the' case of Thale v. The City of Cincinnati, Court Index, February 4th, 1902.
    As to the third proposition, the right of an owner of a lot, bounding or abutting upon a proposed improvement, to recover damages by reason of such improvement, is guaranteed by Section 19, Article I, of the Constitution, which provides that “such compensation shall' be assessed by a jury without deduction for benefits to any property of the owner.” In an action brought by a municipal corporation to assess damages which an abutting lot owner claims he will sustain by reason of a proposed street improvement, the jury may not take into account in estimating the amount of compensation to be paid to the owner, the general benefits resulting from the surface improvement of the street, yet where an incidental benefit to the lot is blended or connected with an incidental injury to such lot, the benefit may be considered in fixing the compensation to be paid the owner, not by way of deduction from the compensation, but of showing the extent of the injury done the value of the lot. Cleveland & Pittsburg B. B. Co. v. Ball, 5th O. S., 568.
    Fourth. Where the abutting lot owners petition for the improvement of a street at an established grade, and the petition is by the municipal authorities referred back to the property owners, with directions to file a new petition, which is accordingly done, asking for the improvement at a different grade, a lot owner not signing the latter petition according to the terms of which the improvement was made, is not estopped to contest the validity of the assessment, although he signed the original petition. PLayes et al v. The City of Cincinnati et al, 62 0. S., 116.
    It follows that the collection of the assessment so far as it includes damages assessed in favor of the plaintiffs and also the cost of excavation to the new grade, should be enjoined, and the balance sustained.
    
      Herma/n Merrell, for plaintiff.
    
      Geo. H. Kattenhorn, contra.
     