
    Wewell v. City of Cincinnati. Anderson v. City of Cincinnati.
    
      Mmnicipal corporations — Sewer improvements — Assessments—Regularity of proceedings — Rev. Stats., secs. 2289, 2327, 2380.
    1. The curative provisions of section 2289 and section 2327 of the Eevised Statutes, extend to irregularities or defects in the estimate of cost and expenses, which the council may direct to be made, after a plan of sewerage for the corporation, or any part thereof, has been approved.
    2. In a city of the first grade of the first class, a plan of sewerage for a sewer district was prepared by the assistant engineer in charge of sewers, who, in submitting the plan to the chief engineer, embodied with it an estimate in gross, of the cost and expenses of the improvement, and officially reported that the proposed sewers could be constructed without cost to the city. The plan, with the included estimate, was approved by the chief engineer, was submitted by him to the board of public works, and that body adopted and placed the same on file. The board of city commissioners transmitted to the council and recommended for adoption, a resolution to improve by sewerage certain designated streets, according to the plan on file, the expenses to be assessed per front foot on the abutting property, and certified to the contractor in payment for the work. In transmitting the resolution, the board of city commissioners reported to the council that, in making the improvement, there would be no expense to the city. Held: That the estimate which accompanied the plan, was not of such a character, as to render void an assessment to pay the cost and expenses of the improvement.
    3. An assessment to pay for a sewer improvement, will not be made void by omitting, prior to the assessment, to construct a sewer in a street embraced in the plan, when it is found that such sewer cannot be constructed without grading the street to the established grade, for which no provision is made by ordinance, and when the omitted sewer would he a lateral, into which no other sewer would drain, or which would in no way affect the drainage of any other street.
    4. The exemption, under section 2380 of the Eevised Statutes, from assessment for the cost of a sewer improvement, is not limited to lots supplied with local drainage under a regular system of city sewerage; but lots that are completely drained by an extensive sewer which discharges into a river, which was constructed partly by the city and partly by private persons, which has been frequently repaired by the city, and into which the city has caused certain streets and the adjacent territory to be drained, are provided with local drainage within the meaning of the statute, and are thereby exempt from assessment.
    (Decided November 22, 1887.)
    
      Error to the Superior Court of Cincinnati.
    The original actions were brought in the superior court of Cincinnati; by the city of Cincinnati, for the use of Frank Enrchner and Alfred B. Ashman, to enforce an assessment for the improvement, by sewering, of Eggelston Avenue and other streets in Sewerage Division No. 8, of the city of Cincinnati. At special term, the superior court held the assessment void, on the ground that no proposal or bid had been advertised or received for board sheeting. This decision was affirmed by the district court of Hamilton county, but was reversed by this court — see 43 Ohio St. 243 — and the causes were all remanded for further proceedings. Upon the new trial, the superior court gave judgment for the city of Cincinnati, for the amount of the assessment, with interest and penalty, against all the lots, except a few which were held exempt on the ground that they were provided with local drainage. The decrees of the superior court in special term were affirmed by that court in general term.
    To reverse such judgment of affirmance, "William P. Anderson, of whose lands two lots were charged with the assessment and two exempted therefrom, filed his petition in error in this court; and in the same proceeding — consolidated therewith under No. 534 — and to reverse the same judgment, a cross-petition was filed by the city of Cincinnati as against the Anchor White Lead Company, William P. Anderson, Catherine L. Anderson, and Thomas B. Paxton as assignee of Thomas B. Richards and others, whose lands were decreed to be exempt from the assessment; and also by Augustus Darr and Francis Darr, executor, et al., against whose lands the assessment was held to be valid and binding.
    And to reverse the judgment so rendered at general term, Joseph Wewell and others also filed their petition in error in this court, with which were consolidated, under No. 535, the petitions in error of Sarah E. Gay and others, and of The Little Miami Railroad Company, whose lands were held liable to the assessment; and in this proceeding, and consolidated therewith, was filed the cross-petition of the city of Cincinnati as against J. C. Eiedeldey, Joseph J. Gest,-John F. Hazcn, Augustus S. Winslow, Walter Smith, Charles H. Kilgour, Frank A. Sudbeck and others, whose lands, it was adjudged, were not liable to the assessment.
    The superior court in special term, in cases City of. Cincinnati v. Anderson et al.} and City of Cincinnati v. Wewell et al., being requested to state separately its conclusions of fact and of law, among other facts, found as follows :
    • “Prior to May 29, 1879, the proper authorities of the city of Cincinnati had duly declared it necessary to provide a systém of sewerage and drainage for said city; said city had been duly divided into sower districts; and all the property described in said petitions is within Sewerage Division No. 8, as thus districted. The city of Cincinnati caused said sewers to be constructed, and the work contracted for was completed and accepted, and the assessment sued on was levied under proceedings as hereinafter found and set forth.
    “A plan of sewerage for Sewer Division No. 8 was approved by the city authorities April 11, 1878, and finally adopted April 28, 1878. Prior to said date, the assistant engineer in charge of sewers had made an estimate of the cost and expenses of improving said division in accordance with said plan ; and in submitting the plan the said engineer stated the gross amount of the estimate as thus made by him at about $80,000; and also stated that on such estimate the improvement could be made without expense to the city. No other estimate of the cost of such improvement was ever submitted to the board of public works or board of city commissioners.
    ■ “On May 29th, 1879, the board of city commissioners of said city, transmitted to council the following report:
    “ Office of Board of City Commissioners, Cincinnati, May 29, 1879.
    “ We report that it is necessary to improve Fifth, Sixth, Seventh, Eighth, Ninth, Court, Race, Vine, Walnut, Main, and Sycamore streets, Broadway, Eggleston avenue, and other streets and alleys of Sewerage Division No. 8, by sewering in accordance with the following resolution, the adoption of which we therefore recommend.
    “By order of the Board of City Commissioners,
    John I). Banks, Clerk,
    
    
      “ Expense to city, none.
    A. L. Anderson, Chief Engineer.
    
    “ Attached to said report was the resolution therein referred to, being a resolution to improve said streets and alleys by con-? structing sewers and drains, with the necessary appurtenances therein, according to the plan of said Division No. 8 on file in the office of the board of city commissioners, in accordance with the plans, profiles and specifications on file in the office of said board, the expenses to be assessed per front foot, on the property abutting thereon, and certified to the contractor in payment for the work. Said board of city commissioners did not transmit with said resolution any estimate of the cost and and expenses of such improvement, unless what is found above is such an estimate.
    “ And on June 20th, 1879, said resolution thus recommended was adopted by council.
    “On October 3, 1879, said common council, on the recommendation of said board of city commissioners adopted an ordinance to improve said streets and alleys by constructing sewers and drains therein according to the plan of said Sewerage Division No. 8, and said resolution was adopted by council on June 20,1879; which ordinance was approved by the Mayor of said city.
    “ No other papers were transmitted to council by said board of city commissioners in connection with said resolution and ordinance than those above referred to.
    “ The plan of said sewerage division referred to in said resolution and ordinance, had been adopted by the board of public works of said city on April 28, 1878, and from that time remained on file in the office of said board and its successors. The same showed the locations of said proposed sewers and drains through said streets, being drawn to a scale, and the sizes, inclinations and material, whether brick or pipe, of the same, and the depth thereof below the surface.
    “ Among the bids for the work received and opened, the bid of Kirchncr & Ashman was accepted, and a contract made with them. The work was done thereunder, and the cost thereof at, the rates fixed by said contracts was $79,468.84. . At fair and reasonable prices for labor and material, said improvement ought to have cost $90,000.
    “ Of the sewers constructed under said resolution, ordinance and contract, some are main or principal sewers; the rest are branch or local sewers, and all drain streets as well as abutting property.
    “An ordinance of assessment, passed July 28, 1881. An assessment for said entire sum of $79,468.84 was levied by the city upon the property abutting the streets sewered, other than the street intersections, at the rate of $2 per foot front, and assigned to Kirchner & Ashman; the assessment being payable on August 17, 1881.
    “That the respective pieces of property of the following named defendants, namely: Parcel 33, belonging to Joseph J. Gest and David Sinton, parcel 37, belonging to John F. Hazen and A. S. Winslow and Walter Smith, parcels 40 and 41, belonging to Charles PI. Kilgour, and parcel No. 71, belonging to Frank A. Sudbeck, described in the petition, were at the time and now are provided with pipes or drains discharging into a sewer, known as the Deer Creek Sewer, which discharges into the Ohio River, but that said various pieces of property were never assessed for the cost and expense of said pipes or drains by said city, nor for the cost and expense of said Deer Creek Sewer, and that said pipes and drains and said Deer Creek Sewer neither of them form any part of the regular sewerage plan of said city, nor have they ever been adopted as part of the sewerage plan of said, city; that said Deer Creek Sewer was constructed more than forty years since from a point north of Sewerage Division No. 8, to the Ohio River, in place of a natural watercourse, known as Deer Creek, and partly in the bed thereof, and thirty to forty feet below the present grade of the streets crossing the same; that it was constructed in parts, portions by the city, where the same crossed or passed under streets, and at other places, and other portions by private persons through their own property; that it has been' frequently repaired by the city under streets and alleys, and at other places, and frequently repaired by private persons on private property; that said city did cause sewer-pipes leading from Lock, Fifth, Harrison, Eighth and other streets to be connected with it, and thereby drained said streets and the adjacent territory into the same, and that most of said pipes were removed or otherwise disconnected when the sewers were laid in said eighth division; that" said Deer Creek sewer is still used as such, and that no assessment was ever levied by the city on any property for such parts of said sewer under streets and alleys as the city did build, and that said Deer Creek sewer is under private property nearly its entire length, except in those places where it crosses or runs along under particular streets and alleys, to-wit; at the intersection of Eighth street and Eggleston avenue. Said sewer crosses from the east side of Eggleston avenue for the distance of about one hundred and fifty feet to the intersection of Eighth and Culvert streets; thence it turns into private property, and runs southerly through private property crossing Sixth street to about the north line of the property of Sudbeck, being parcel 71 in the petition; thence it turns wcstwardly to a point on Culvert street east of the center of Culvert street opposite said Sudbeck’s property; thence it turns southwardly approaching the east side of Culvert street touching the northeast corner of Fifth and Culvert streets, crossing Fifth street into private property; thence it runs into a southerly direction crossing Fourth street; thence through parcels 40 and 41 in the petition, belonging to C. H. Kilgour; thence crossing Third street near Eggleston avenue and running southerly to the Ohio River, and in that manner each of said parcels. Nos. 33, 37, 40, 41 and 71 was supplied with local drainage.
    “Prior to the 30th day of June, 1874, to-wit: on the 16th day of May, 1868, one J. C. Fiedeldey was the owner of all the land described as parcel 19 in case 37,466; and of the tract adjoining the same on the east, fronting 19.67-100 feet on Fifth street, and 38.20-100 feet on Eggleston avenue; during the year 1868 he built six separate buildings in one block upon said land; each of said buildings was at the time said improvement was ordered, which is herein sued for, occupied as a separate ,building; during the construction of said buildings, to-wit, on the 16th day of May, 1868, said J. C. Fiedeldey applied to said city of Cincinnati to tap a large trunk sewer in Eggleston avenue, for which his property had never been assessed, for the purpose of draining his premises on the northwest corner of Eggleston avenue and Fifth street. With said application he filed a plat certifying that said plat represented correctly the necessary drain required for his premises on Eggleston, avenue at Fifth street. Said plat showed said premises as having a frontage of 38 feet on Eggleston avenue, but did not show the frontage of said lot on Fifth street or the size of said lot; said plat showed a ten inch drain in Eggleston avenue by solid lines extending from the trunk sewer in said avenue to the east line of said lot, and also dotted lines extending from said stone' pipe into said lot, said dotted lines not being explained by any figures or words ; and thereupon said city granted said application on his paying it $2 per front foot on said Eggleston avenue frontage, being $76, and $10 for plat and survey; he then tapped said trunk sewer in Eggleston avenue and made a connection therefrom to the corner building or lot of said parcel 19, said corner lot being 19. 67-100 feet in front on Fifth street and 38.20-100 feet on the west side of Eggleston avenue; he built a private drain extending from the drain on said corner lot westwardly through the cellars of his other five separate buildings; all the house .and surface drainage and the drainage from the water-closets from each of said houses west of said corner house, runs into said private drain extended: June 30, 1874, said J. C. Fiedeldey sold and conveyed to one D. Sturla the corner lot and building from said parcel 19, fronting 19.57-106 feet on the north side of Fifth street and 38.20-100 • feet on the west side of Eggleston avenue; at the time of said sale said J. C. Fiedeldey reserved in his deed to said Sturla the right of drainage for each and all of his said houses on the west through said lot of.said I). Sturla into the main trunk sewer in Eggleston avenue; each of the separate buildings belonging to said defendants interested in said parcel 19 front upon the north side of Fifth street; the said first'building west of Sturla’s lot being 16.24-100 feet front, the next east 16.39-100 feet front, the next 16.25-100 feet front, the next 16.46-100 feet front, and the next 18.46-100 feet front.
    ******** *
    
      “ The property assessed as the property of the defendant, The Anchor White Lead Company, extends from Eggleston avenue on the east to Culver street on the west. Said property is all improved and used for business purposes as one lot; a sewer was constructed under said proceedings in Eggleston avenue in front of said premises. The Deer Creek sewer aforesaid runs under said property of said Anchor White Lead Company, on a line drawn north and south through said property nearer to Culvert street than to Eggleston avenue, and on said premises there was, prior to June, 1879, and still is, a large pipe connecting with said Deer Creek sewer with a capacity to furnish drainage for a much larger tract of land than that owned by said defendants; said connection with said Deer Creek sewer furnishes said premises with good and complete drainage, except as to a portion of the roof water, which is carried into the gutters and thence into the new sewer now assessed for, and in that manner said premises were supplied with local drainage.
    “All the property of the defendants, W. 3?. Anderson and Catherine L. Anderson set out in the original petition, excepting that lot lying on the east side of Culvert street, is improved and used as one lot for business purposes. The Deer Creek sewer above described runs under the lands of these defendants on the east side of Culvert street, which lands are not improved. The other lands of said defendants herein assessed, except those described in the supplemental petition, are connected with said Deer Creek sewer by a pipe eighteen inches in diameter, which extends from the cellar of the buildings on said lands across and under said Culvert street into said land on the east side of Culvert street. Said pipe was laid there some thirty years ago, and has been continually used, and is now used for draining said premises except as to a portion of the surface and roof water which is to run into the street, and thence into the new sewers now assesed for. Said pipe is sufficient in size to furnish drainage for a much larger area than said premises of said defendants, and at the time said improvement and assessment were made, and at the present time, furnished said premises with good and complete drainage, except as to a portion of the surface and roof water aforesaid. And in that manner said premises were supplied with local drainage.
    
      “ Said lot described in the supplemental petition was purchased by said defendant, W. P. Anderson, since the assessment sued for herein was levied, and has since been improved in connection with the improvements on his own property on the west side of Culvert street. •
    
      “ Thomas B. Paxton and the other defendants named in the petition in case 37,605 consolidated herewith, own a tract of land described as follows: Beginning at the south-east corner of Eighth and Culvert streets; running thence south on Culvert street 343J- feet; thence east 200 feet to Eggleston Avenue; thence north on Eggleston avenue 154 feet to a lot owned by Schmutte; thence west with Schmutte’s south line about 30 feet; thence north parallel with Eggleston avenue on Schmutte’s west line to Eighth street, striking the same at a point 30 feet west of Eggleston avenue measured on Eighth street, and thence west on Eighth street 42 feet to the place of beginning. The premises described in said petition in case No. 37,605 as four lots are parts of said tract; but the descriptions as there given are not in accordance with any conveyances of said tract, or use of said premises; and the alley mentioned in said petition does not exist. In 1845 the south 132 feet of said tract was subdivided by an executed and recorded plat of subdivision into twelve lots, of 22 feet front each, six fronting on Culvert street and six fronting on Eggleston avenue, and divided in the rear so far as said plat i's concerned by a line equally distant from Culvert street and Eggleston avenue. But since the date of said plat several conveyances of said tract have been made, and all of them have described it as one lot substantially as by the first description above given, without reference to said subdivision; and since 1850 said premises have been occupied as a cooperage establishment as one lot, never having been divided or separated in the use made of the same. Said Deer Creek sewer, from Eighth streer southwardly, runs along Culvert street about 50 feet; it then strikes into said premises, and runs through the same near Culvert street southwardly towards the river. For the past thirty years said premises and the buildings thereon, have been and still are connected with said Deer Creek sewer by pipes, through which the water falling 'upon and also the water brought on and used on said premises and buildings and all sewerage matter from said premises and buildings have been drained and carried into said Deer Creek sewer; and in that manner said premises were supplied with local drainage.
    “All the streets and alleys shown on said plan, were sewered according to said plan, excepting Butler street from Third street to Fifth street, and Seventh street from Scott alley .to Culvert street; said Butler street and Seventh street were not included in the contract with said Kirchner and Ashman ■ said two streets never have been improved by sewering; the sewers contemplated in said two streets, were laterals draining only the property abutting thereon; at the time said contract was made said two streets were not graded to the established grade; the property abutting thereon has not been assessed for any part of the cost of sewering said division; the cost of building said laterals in said two streets, including the grading of said streets which would have been necessary to support said sewers, would have increased the cost one per centum over and above the assessment made on the property in said division •, and if said two streets had been, previously graded to the established grade and said sewers in said two streets had been built under said contract, and the property abutting been included in the assessment made, the rate of assessment on the entire division would have been three and one-half per centum less than the assessment made.
    
      
      “ None of the property of any of the defendants was ever assessed by said city for the construction of any part of said Deer Creek sewer.”
    And among other findings of law, the court found the law to be as follows:
    
      “ Said assessment is valid and ought to be enforced against all the property of all the defendants herein, except that the following lots were exempt, because they and each of them on the facts found were provided with local drainage at the time said improvement was ordered and assessment made, to-wit: Parcel number one in the petition belonging to the Anchor White Lead Company, parcels Nos. 3 and 4 in the petition belonging to Wm. P. Anderson and others, parcels Nos. 1, 2, 3 and 4 in the petition in case No. 37,605 consolidated herein belonging to Thomas B. Paxton, assignee, and others. The following lots as described in the original petition, to-wit, lots Nos. 19, 33, 37, 40, 41 and 71 are exempt from said assessment because they and each of them upon the facts found were provided with local drainage at the time said improvement was ordered and said assessment made.”
    
      James H. Perkins, Paxton & Warrington, Goss & Cohen, IT. P. Lloyd, Pamsey, Maxwell & Matthews, and W. C. Fiedeldey, for plaintiff in error.
    
      JD. Widsin and William Worthington, for defendant in error.
   Dickman, J.

In resisting the enforcement of the assessment in dispute, it is urged by the owners of the abutting property, that no estimate of the cost of the improvement, such as the law contemplates, was made and transmitted to the city council with the resolution or ordinance to improve ; and that consequently the municipality did not acquire jurisdiction to prosecute the work. The facts connected with this branch of the case seem not to be contested. A plan of sewerage for the district known and designated as Sewer Division No. 8, was approved by the city outhorities, and afterwards finally adopted April 28, 1878. The plan had previously been prepared by the assistant engineer in charge of sewers, who, in submitting it to the chief engineer, embodied with it an estimate, as he regarded it, of the cost and expenses of the improvement. The assistant engineer estimated the total cost of the proposed sewers at the gross sum of about $80,000; and on the basis of such estimate, officially reported that the sewers could be constructed without cost to the city. The plan with the included estimate being approved by the chief engineer, it was by him submitted to the board of public works, which body adopted the same, and placed it on file — the estimate being thus explanatory of, and virtually a component part of the plan. The plan of sewerage being determined on, the board of city commissioners, the successor of the board of public works, in May, 1879, transmitted to the council and recommended for adoption, a resolution to- improve the designated streets and alleys according to the> plan on file ; and as set forth in the estimate accompanying the plan, reported to the council that the expense to the city would be none. The resolution, and an ordinance to construct the proposed sewers in accordance with the plan of the Eighth Sewerage Division, were thereupon properly adopted, and the improvement was made.

It is provided that in the building of sewers, the council may direct an estimate of the cost and expenses of constructing the work to be made. The special and controlling provision for such an estimate is found in section 2377, under the the subdivision of the Revised Statutes relating to sewers and assessments therefor, and reads as follows; After the plan of sewerage for the corporation, or any part thereof, has been approved by the board, and filed in the manner above pi'Ovided, the council may direct the engineer of the corporation, or sewerage engineer, as the case may be, to make an estimate of the cost and expenses of constructing the work, according to such plan, and report to the council what portion of the same will be required for main sewerage, and what portion for local sewerage, for any lots and lands to which any portion of such main sewer may serve as local sewer.”

The board referred to in this section, is, by a subsequent section, made to embrace the board of city commissioners in Cincinnati, or cities of the first grade of. the first class; and the question arises, whether in the case at bar, there has been a failure to fully meet the requirement of the statute as to making an estimate, whereby the assessment under consideration became necessarily void. The council did not direct the engineer of the corporation or sewerage engineer to submit an estimate; but through the estimate that accompanied the plan of sewerage, the council was put in possession of the required information. For the purpose in hand, the object of an estimate was attained. The cost of the work was not, it is true, estimated in detail, and was furnished only in gross; but the council was informed that the city would be put to no expense by the improvement that the entire cost would be about a certain specified sum, and would not exceed the amount that might be collected by assessment, or $2 per foot front of the abutting land. The rates fixed by the contract awarded showed the estimate to be accurate and within bounds, and based upon prices of labor and material unusually fair and reasonable. The estimate at the time it was prepared and submitted, was no doubt deemed adequate under the law; and although not sufficiently full and complete to be unexceptionable, we do not think it was so defective as to invalidate the assessment. The defect was not of that substantial character as to place it beyond the curative provisions of the Revised Statutes as embodied in section 2289 and section 2327. Those sections provide as follows :

“ Section 2289. In every such action (to enforce an assessment lien) the court shall disregard any technical irregularity or defect, whether in the proceedings of the board of improvements, or of the council, or of any officer of the corporation, or in the plans or estimates; and the acceptance of the work by the council on the certificate of the engineer, shall be presumptive evidence that the contract has been complied with, but a substantial defect in the construction of the improvement shall be a complete defense.

Section 2327. Proceedings with respect to improvements, shall be liberally construed by the councils and courts, to secure a speedy completion of the work at reasonable cost, and the speedy collectioon of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded; but the proceedings shall be strictly construed in favor of the owner of the property assessed or injured, as to the limitations on assessment of” private property, and compensation for damages sustained.”

The evident intent of these two sections is, that where the contract has been complied with, and the work accepted by the council; where there is no defect in the construction of the improvement; where the work has been completed at reasonable cost; where strict regard has been paid to the limitation on assessments on private property, any technical irregularity or defect in the plans or estimates, shall not avail to prevent the speedy collection of the assessment when due. Not only are merely formal objections to be disregarded, but the proceedings with respect to public improvements are to be liberally construed by the courts, and when the property-owner has received no injury from the improvement, but has been specially benefited thereby, he shall not be permitted, because of an unsubstantial defect, to evade payment of his proportion of the assessment.

It is furthermore contended that the assessment was premature and unauthorized, because all the streets had not been underlaid with sewers prior to the assessment; that Butler street from Third to Fifth street, and Seventh street from Scott alley to Culvert street, although included in the declaratory resolution, and in the ordinance ordering the improvement, were not provided with sewers, and that therefore the assessment was illegal and void. These two streets had never been graded to the established grade, and grading was necessary to support the sewers to be constructed therein; but the ordinance, which could not by law contain more than one subject clearly expressed, related solely to the construction of the sewers. Under that ordinance, no contract could be entered into except for the improvement according to the plan adopted. The streets, accordingly, in which grading was necessary before sewers could be built therein, were not included ki the contract with Kirchner & Ashman; and the property abutting thereon, was not assessed for any part of the cost of the improvement. But as far practicable, and as far as authorized by law, the plan of sewerage was fully executed. Under the circumstances, we are not prepared to hold that the assessment was void, because the two streets were not improved by sewers.

The sewers designed for the two streets were laterals, draining only the streets in which they were to be laid. No other laterals or other sewers would drain into them; and their omission on those streets would not affect the drainage or construction of other laterals, or other drains or sewers embraced in the plan. The full benefit of the public improvement would inure to those property owners in the district who were assessed, independently of what might be done or omitted to be done as to the sewers in Butler and Seventh streets. The case of City of Cincinnati v. Cincinnati and Spring Grove Avenue Co., 26 Ohio St. 345, is not in conflict with these views. In that case, for the purpose of connecting two public thoroughfares, a street improvement was ordered, which was to be paid for by assessment on the owners of abutting property. After the work had been completed part of the way, it was suspended or abandoned, leaving part of the proposed street wholly unopened. The assessment for the work already done was deemed premature, because the stopping the work resulted in a failure to accomplish the substantial purposes intended by the improvement as ordered. But the opening of a street, in which all the owners of abutting property are inter-rested for purposes of travel and convenient access to their premises, is materially different from a sewer improvement, from which there is an omission of a lateral sewer which drains only abutting lots, and does not benefit or affect the drainage of other property in the same district.

But while the objections to which we have referred, may be insufficient to invalidate or prevent the enforcement of the assessment in controversy, the lots which, as it appears from the finding of facts, were provided with local drainage at the time the improvement was ordered and the assessment made, should, we think, be exempt from the assessment. The claim for exemption is based upon a prohibitory clause of section 2380 of the Revised Statutes, which section is in the words following:

Section 2380. The assessment shall not exceed the sum that would, in the opinion of the council, be required to construct an ordinary street sewer, or drain, of sufficient capacity to drain or sewer such lots or lands’; nor shall any lots or lands be assessed that do not need local drainage, or which are then provided therewith; and the excess of the cost, over the assessment herein authorized, shall be paid out of the sewer fund of the corporation.”

The question for determination under the statute, is one of fact between the municipality and the owners of abutting property, viz.: whether certain lots or lands are so provided with proper local drainage, in the statutory sense, as to be exempt from the special assessment. The local drainage provided, which can be effective to exempt the property drained, must, of course, be of such a character as to satisfy the statute. An ordinary surface drainage will not be sufficient. The dimensions, the mode of construction, the material used, the location, the outlet, the sanitary conditions, and other considerations should be such, as would belong to a sewer or drain built substantially in conformity to the requirements of the statute. As illustrated in several of the cases growing out of this public improvement, lots drained by a wooden box drain, placed as a temporary expedient in anticipation of regular sewerage, or drained simply by flowage over the surface, are not supplied with local drainage as to be exempt from assessment.

The record discloses that nearly all the lots exempted from assessment, are connected by pipes or drains with a large sewer called Deer Creek Sewer,” built between thirty and forty feet below the surface of the ground, constructed more than forty years ago in the natural water course known as Deer Creek, and extending from a point north of the eighth sewerage division, and discharging into the Ohio River. The various pieces of property so connected, were never assessed by the city for the cost and expense of the pipes or drains, nor for the construction of any part of Deer Creek sewer. Neither the pipes or drains, nor the sewer itself, have ever been adopted as part of the regular sewerage plan of the city; but Deer Creek sewer was constructed in parts, portions by the city, and portions by private persons, through their own property. It has been frequently repaired by the city, and frequently by private persons on private property. Certain streets and the adjacent territory have been drained into it, by means of sewer pipes which the city caused to be connected with it. It appears from the finding, that the lands connected with this well-known sewer, and certain other lands having connection with a trunk sewer in Eggleston avenue, were furnished with local drainage adequate to all the requirements of the statute. Indeed it is contended that the Deer Creek sewer is as permanent and efficient for drainage as the Eggleston avenue sewer, into which empty the sewers that are made the subject of the disputed assessment.

The exempted lots are part and parcel of lands which originally needed local drainage, but were provided therewith by utilizing the natural water course for sewerage purposes. That it was thus rendered available for such purposes, is a sufficient indication, that local drainage was needed by the lots connecting therewith. The statute manifestly contemplates two classes of lots or lands: 1st. Those which are so situated topographically, as to drain themselves by natural outlets into rivers or streams, or other receptacles; 2d. Those which, though from any cause they once required artificial local drainage, have been sufficiently provided therewith. 'Whén so provided, and the fact is so found, the statute in prohibitory language exempts the lots or lands from special assessment.

In order however to be provided with local drainage, within' the meaning of section 2380, we do not deem it essential, that the drainage must have been furnished, in all cases, under a regular sewerage system ordered by the city, and that abutting property must have been assessed for the cost and expenses, and the assessment paid by the owner. The language of the statute, that no lots or lands shall be assessed, that do not need local drainage or which are then provided therewith is general, and cannot be so restricted as to make the exemption or prohibition applicable only to drainage already paid for under a plan established by the municipality. Through what instrumentality the drainage must have been supplied, the statute is silent; but such drainage as would come up to a proper standard, must have been provided. To enact that lots shall be exempt from a special sewer assessment, after they have been in all respects provided with drainage and assessed for the same, and have paid the assessment under a regular system of sewerage established by ordinance, would seem to be an unnecessary statutory provision. And to give the language of the statute its due force and effect, it should not be limited, in its construction, to such local drainage only as had its origin in a system so established.

The foundation of special assessments for public improvements, is the special benefit derived by the owners of property, over and above the rest of the community. If the assessment-imposed is in excess of advantage received, to that extent, there is a contribution to the public use without compensation. As said by the court in Stewart v. Palmer, 74 N. Y. 189, “Assessments for local improvements can be justified only upon the theory that the lands upon which they are laid are specially benefitted by the improvements for which they are laid, and hence ought to bear the burden rather than property generally ; and if a law should authorize such assessments to be laid without reference to benefits, it would either take property for public good without compensation, or it would take property from one person for the benefit of another.” And in Chamberlain v. Cleveland, 34 Ohio St. 562, it is stated as a fundamental principle that, “ If a sum is exacted in any instance in excess of the value of the special benefits conferred, it is, as to such excess, in that instance, private property unjustly taken for public use without compensation to the owner.”

To prevent inequality and injustice in distributing the burdens of assessment, the constitution and statutes have provided limitations and safeguards. Nor in imposing those burdens, is a line of' separation to be drawn between sewers and surface improvements, whereby in the one case no reference shall be had to benefits received, though in the other case.they may be considered. The statute enjoins, in general terms, that so far as practicable, regard must be had, in making special assessments, to the probable benefits to the property assessed” (sec-2283 of the Revised Statutes.) Section 2379 and Section 2381 of the Revised Statutes provide for an assessment of the cost of main sewers and of local sewerage, by the feet front, or according to valuation upon the the tax list, or in proportion to benefits, thus implying the existence of the benefits as a necessary antecedent to a choice of modes in making the assessment. And in construing the statutory provisions with respect to improvements, it is enacted in language cited supra, “ the proceedings shall be strictly construed in favor of the owner of the property assessed as to the limitations on assessment of private property.”

Applying these rules and principles to the case under consideration, it may well be inquired, how far are the lots or lands connected with the Deer Creek sewer or the trunk sewer in Eggleston avenue, specially benefitted by the sewers that are the subject of the disputed assessment. If those lots are so provided with local drainage, that they receive no special benefits from the improvement, shall they, notwithstanding, be assessed because such drainage was not supplied under a regular plan of sewerage, originated and perfected by the city authorities ? The mere levying of an assessment for the sewers, cannot be held as conclusive evidence of benefit received by property owners. When it is settled as a fact, that lands are already provided with local drainage as contemplated by the statute, it becomes evident that the property will derive no special benefit from the improvement, and should not be subjected to the burden of assessment. If, however, the property cannot be brought within the purview of the statutory exemption or prohibition, by having been provided with the requisite local drainage, it may be presumed that it is specially benefited by the new improvement, and the assessment may be levied according to the rule prescribed by statute.

Judgments affirmed.  