
    KLOOS v STRANAHAN et
    Ohio Appeals, 9th Dist, Lorain Co
    No 753.
    Decided Nov 8, 1935
    John K. Nece, Elyria, for plaintiff in error.
    Howard R. Butler, Prosecuting Attorney, Elyria, for defendants in error.
   OPINION

By STEVENS, J.

The first contention of plaintiff in error is conclusively answered by the Supreme Court of Ohio in In Re Appeal in Joint County Ditch, etc., 122 Oh St 226, syllabus 4, where the court said:

“4. In accordance with provisions of §6472, GC, the burden of proof on such appeal may properly be imposed upon the appellant.”

The second point urged by plaintiff in error has to do with the view of the proposed improvement, which the record shows the commissioners to have had. It is urged that, because the commissioners did not “go over and along the line of the proposed improvement,” but merely viewed the same from the upper terminus thereof, the commissioners were without jurisdiction to assess.

It will be remembered that the improvement in question was not the location and construction of a new ditch, but the relaying of tile in an old ditch long since located. Strict compliance with the mandatory portions of §6450, GC, might and probably would be required in the location and improvement of a new ditch, but we hold that, where the improvement involves only the cleaning and relaying of tile in an old ditch, already established, a substantial compliance with the provisions of said section is all that is required, and such compliance by the commissioners appears from this record.

We find no legal justification or basis for the claim of estoppel urged by Stranahan, and it is our unanimous opinion that the judgment of the Court of Common Pleas is sustained by the manifest weight of the evidence.

Judgment affirmed.

PUNK, PJ, and WASHBURN, J, concur in judgment.  