
    STREET ASSESSMENTS AGAINST PROPERTY APPROPRIATED FOR PARK PURPOSES.
    [Circuit Court of Hamilton County.]
    William Scully v. City of Cincinnati et al.
    Decided, December 29, 1906.
    
      Municipal Corporations — Property Appropriated for Parlo Purposes— Lien of City for Street Assessments- — Claim for, Adverse to Lot Owners — Section 1536-111.
    The lien of a street assessment against property appropriated by the city for park purposes is merged in the higher title of the fee thereby acquired, and the city is entitled to retain the present value of assessments remaining unpaid from the amount assessed as compensation to the land owners.
    Nine annual installments of a lien for a street assessment remained unpaid at the time of the appropriation by the city for park purposes of the property so assessed. In making its order of distribution of the amount assessed by the jury as compensation to the land owners, the court below -retained a sufficient sum to satisfy the claim of the city for the unpaid assessments, Eium this older an appeal was tateu,
    
      Giffen, J.; Jelke, P. J., and Swing, J., concur.
    "While it does not appear from the cross-petition of the city auditor when, the work of improving the street was commenced nor when the assessing ordinances were passed, enough appears in the record, as against a demurrer, to show that the assessments were made and were liens upon the real estate in question at the time the same was appropriated for a public park. Maleley v. Whitmore et al, 61 O. S., 587-592.
    Section 1536-110, Revised Statutes, provides that, “The jury shall be sworn to make the whole inquiry and assessment,” and the record shows that they assessed the compensation to be paid for the several lots to the owner or owners of each particular lot.
    Whether or not the city was an owner by reason of its lien upon the real estate for unpaid assessments is immaterial, as its claims were adverse to the lot owners, and the adjustment of such claims is provided for by Section 1536-111, Revised Statutes.
    If no such adjustment were had in this proceeding, the lien would be merged in the higher title of the fee thereby acquired. The city was entitled to only the present value of the annual assessments; but the lot owners having declined to plead further, after demurrer overruled, will be deemed 'to have waived such defense.
    Judgment affirmed. Same entry in the case of Scully, Administrator, v. The City of Cincinnati el al and Burnet v. The City of Cincinnati et al (4289 and 4290).
    
      John C. Healy, for plaintiffs in error.
    
      John B. Schindel, for defendants in error.
     