
    The City of Cincinnati et al. v. Polster et al.
    
      City sewer assessment — Local drainage by private sewer—Exemption from assessment warranted only — When local drainage and right of maintenance permanent.
    
    1. Where, pursuant to appropriate legislation regular throughout, an assessment is levied upon lots and lands for the construction of a sewer in a city street, and exemption of a lot abutting thereon from assessment for the construction thereof is claimed on the ground that it is provided with local drainage, the burden is upon the owner to show that local drainage has been provided which is adequate to meet the needs of such lot both for surface drainage and the usual purpose of sewerage.
    2. A lot is not so provided with local drainage as to exempt it from assessment for the construction of a sewer in the street upon which such lot abuts, where it appears that its only drainage facilities are afforded by a privately constructed drain through the adjoining premises over which the owner of the lot in question has no control and no right to use and maintain such sewer.
    3. Exemption of such lot from assessment on the ground of present adequate drainage is warranted only when it is shown that the drain whereby it is served is permanent in its character of construction and the owner of such lot has a right to permanently maintain and use it.
    (No. 15300
    Decided April 3, 1917.)
    
      Error to the Court of Appeals of Hamilton county.
    The defendants in error, John G. Polster, Charles Lobitz, Frank Allgeier and others, brought action in the court of insolvency of Hamilton county wherein they asked an order perpetually enjoining the collection of an assessment theretofore levied upon their severally-owned certain city lots to meet the cost and expense of constructing a sewer in Fairview avenue in the city of Cincinnati, upon which said lots fronted and abutted. The court of insolvency granted the relief prayed for. The case was appealed and the court of appeals entered a similar decree, to which error is prosecuted.
    The bill of exceptions contains a statement of facts, which the parties agree embraces all the evidence offered by either party on the trial in the court of appeals. The material and essential facts contained therein are as follows:
    Fairview avenue, Westview avenue and McMillan street are public streets of said city, and the lots in question in this case front on Fairview avenue. The defendants in error Charles Lobitz and Sophia Lobitz acquired their said lot by deed which contained a clause conveying: “also a right two feet wide for drain and sewer through sewer now constructed, being forty-eight (48) feet south of Straight street, and running from the lot above described to Westview avenue, for a period extending one year after sewer is ready for use in Fairview avenue.” Said lot is now drained by a sewer referred to in the deed, which is constructed through a lot west of the Lobitz property and empties into the public sewer in Westview avenue, the property through which said sewer is constructed not being owned by either Charles Lobitz or Sophia Lobitz. More than one year has elapsed since the completion of the public sewer in Fair-view avenue.
    The defendant in error Frank Allgeier acquired title to his lot by deed which contained a clause conveying to the grantee the right to lay and maintain a sewer pipe from said lot through the adjoining premises of the grantor to Westview avenue, but expressly providing that “the right- to so use and maintain said sewer pipe or drain shall cease as soon as a public sewer is laid in Fairview avenue in front of said fifty-foot lot.” Said property is now drained by the sewer referred to in said deed, which sewer is constructed through a lot not owned by Frank Allgeier and empties into the public sewer in Westview avenue.
    The lot belonging to defendant in error Herman Suer is drained by a sewer constructed therefronq southwardly to McMillan street through property not owned by Herman Suer; but he was the owner thereof at the time of the construction of the sewer therein.
    The city of Cincinnati made no objection to the drainage of said properties in the manner in which they are now drained, nor has the owner of the properties through which said several sewers are constructed made objection to the use thereof by the defendants in error. Said sewers were in use prior to the passage of the legislation' for the construction of the Fairview avenue sewer by the city, and have been continuously used for the purpose of conducting drainage and sewage from said properties, and neither of said properties is connected with the public sewer in Fairview avenue. The city of Cincinnati passed the necessary legislation, and improved Fairview avenue by constructing and laying therein a public sewer in front of the said lots of the several defendants in error, and for the purpose of paying a portion of the cost of said improvement levied an assessment against each front foot of the property of said defendants in error in the sum of 2.685 dollars. In anticipation of the collection of said assessment the city issued its bonds in an amount equal to the assessments not paid in cash, and interest on the same. The Fairview avenue sewer was completed by the contractor and accepted by the city prior to the date of filing the petition in this case.
    
      Mr. Charles A. Groom, city solicitor, and Mr. Frank K. Bowman, assistant city solicitor, for plaintiffs in error.
    
      Messrs. Renner & Renner, for defendants in error.
   Matthias, J.

The defendants in error seek relief from the assessment levied upon their several properties for the construction of the Fairview avenue sewer upon the ground that each of said lots is now and was at the time of the passage of the legislation for the construction of the Fairview avenue sewer provided with adequate drainage, and, therefore, that no special benefit accrued thereto by reason of the construction of that sewer. The defendants in error base their claim for exemption from such assessment upon the following provisions of Section 3819, General Code: “Assessments levied for the construction of main sewers shall not exceed the sum that in the opinion of council would be required to construct an ordinary street sewer or drain of sufficient capacity to drain or sewer the lots or lands to be assessed for such improvement, nor shall any lots or lands be assessed that do not need local drainage or which are provided therewith.”

Each of the lots in question fronts upon Fair-view avenue, but at the time of the construction of the sewer upon that avenue, and for some time prior to the passage of the legislation therefor, drainage and sewer accommodation was afforded by separate drains from each lot, privately constructed through property of persons other than the owners of the lots in question, to a public sewer in another street. The record discloses that the right to so use the adjoining property was but temporary, and was made so in anticipation of the construction of a public sewer in Fairview avenue. This is particularly true with reference to the Lobitz and the Allgeier properties. Allgeier’s right to use the private drain from his premises, under the express terms of the clause in his deed granting the right, was to cease “as soon as a public sewer is laid in Fairview avenue in front of said fifty-foot lot.” The right to use the privately-constructed drain which served the lot of the defendant in error Lobitz was limited, by the express terms of the clause in his deed granting the right, to “one year after sewer is ready for use in Fairview avenue,” which time had expired. It does not appear from the record that the defendant in error Suer had any right for any period of time to use and maintain the privately-constructed drain which serve's his property. Each of the drains serving the several premises passes through private property, and although it appears that thus far the owner of the property through which such drains are constructed has made no objection thereto, yet the use clearly appears to be without right and therefore may be terminated by the owner at any time.

The contention made on behalf of the city is that before a property owner may be exempt from the payment of an assessment for the construction of a sewer on a street upon which his property fronts, upon the ground that such property is already provided with local drainage, he must show that the method of drainage provided, and the right to use the same, are permanent in character, and not subject to discontinuance at the option and upon the order of the owner of the property through which such drain or sewer is constructed. Counsel for the city find support for this contention in Hildebrand v. Toledo, 6 C. C, N. S., 450; Ely v. Elyria, 15 C. C, N. S., 133; Frey v. Millikin, 15 O. D., N. P., 122, and Wilson v. Cincinnati, 5 N. P., 68.

The theory upon which such an improvement is authorized is that it is a sanitary measure, the primary object being the promotion of the health and welfare of the community However, each lot for which drainage is afforded by the furnishing of sewer facilities receives a special benefit for which it is required to pay. This sewer was constructed primarily as an improvement of Fairview avenue and to provide drainage and sewer facilities for properties abutting thereon. Before any such lot upon which an assessment has been regularly levied for the construction of such improvement can be relieved from that assessment, upon the ground that such lot does not need local drainage or is provided therewith, these facts must be made to appear, and the burden is upon the owner to establish them to warrant the exemption from such assessment. That, rule was well stated by the judge rendering the opinion in the case of Ford et al. v. Toledo et al., 64 Ohio St., 92, who also very pertinently observed, at page 98: “To authorize an assessment for sewer purposes, it is not necessary that the property should have immediate need for the use of the sewer * * * And, the length of time the ground may probably remain vacant, only goes to the urgency of the need and the measure of the benefit.”

It was held by the court in that case that the local drainage contemplated by the exemption clause of Section 3819, General Code, is one that provides the lot or lands with “adequate” drainage for the necessary and usual purposes of sewerage. It is not sufficient to warrant exemption from assessment that the property owner has provided some method of drainage satisfactory to himself, regardless of its character or mode of construction. A drain constructed temporarily and in anticipation of the construction of a permanent sewer might serve the purpose fully for the time being, and yet not be such as to warrant the conclusion that the lot served thereby is provided with local drainage. A lot so drained may not have imperative immediate need of the drainage to be furnished by the proposed sewer, just as a vacant city lot has no such immediate need; but neither should be exempt from the assessment on the sole ground that a necessity for the sewer does not exist. Just as it is essential that drainage provided in order to exempt a lot served thereby from assessment for the construction of a sewer in a street upon which such lot abuts shall be permanent in its character of construction and fully meet the demands of proper sanitation, so is it also essential that the owner shall have a vested right to permanently maintain and use such sewer for the purpose of draining his lot. It is not sufficient that he have a mere present right to use the drain leading from his premises through the premises of another, with no authority over or control of the same. Indeed it appears in this case that the only right granted the owners of the lots in question no longer exists. The right to use such drain having ceased, it cannot be said that the lots are provided with local drainage so as to be exempt from assessment for the construction of the Fairview avenue sewer.

In the case of Wewell v. City of Cincinnati, 45 Ohio St., 407, which is urged in support of the contention of defendants in error, it appears that the sewer into which the properties claimed to be exempt were drained was constructed through private property; but no question whatever seems to have been raised in that regard. Furthermore, that sewer had been constructed and in use more than forty years when assessments were levied for a new sewer, and “was constructed in parts, portions by the city, and portions by private persons through their own property.”

It is our conclusion that the lots of these defendants in error were not exempt from the assessment levied upon them and that the court of appeals was in error in awarding a perpetual injunction.

Judgment reversed.

Wanamaker, Jones, Johnson and Donahue, JJ-, concur.  