
    No. 467
    IN RE APPEAL FROM BOARD OF COM.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 190.
    Decided April 24, 1925.
    1159. TAXES AND ASSESSMENTS—Cannot be levied for improvements when no benefit is derived therefrom. 2. When lower tenement has natural drainage, not liable for costs of artificial drainage of other lands.
    Attorneys—J. R. McNnight, for Hornings; Rowley & Carpenter, for Commissioners; all of Norwalk.
   YOUNG, J.

Error was prosecuted by William and Henry Horning from a judgment of the Huron Common Pleas confirming the action of the county commissioners in a resolution passed levying an assessment on Horning’s land for the construction of a tile drain in the natural watercourse known as the Hippier Ditch No. 405. Eros assigned are the overruling of a motion for a new trial and judgment was given against them when under the evidence it should have been given for them.

The petition filed with the commissioners stated that the purposed drain would benefit about 300 acres of land including the land of Horning. The levied assessment was $140. Horning contends that they already have sufficient drainage and that since they would derive no benefit from the proposed drain the assessment against their property is illegal and unwarranted. The petition has alleged that the benefits derived would exceed the cost and the assessments. The Court of Appeals held:

1. If the lower tenement has adequate natural drainage, he is not liable for the cost of artificial drainage to other lands. Blue v. Wentz, 54 OS 247.

2. When there can be no special benefit to the lands from the proposed improvements, an assessment made on them for any part of the cost thereof would be a simple taking of the property of one person for the benefit of another; but the assessment would be void Mason v. Commissioners 80 OS. 181.

3. The only cost that can be assessed against Hornings is a proportionate share of the cost of cleaning of said ditch on their premises, but not for deepennig and widening.

The judgment being against the weight of the evidence is reversed and cause remanded.  