
    City of Cincinnati v. Manss
    
      Street improvement — Owner of property represents in petition certain number of feet — Estopped after improvement from claiming less number of feet.
    
    Where an owner of property on a street unites with others in a petition for its improvement, stating therein the number of feet his property abuts on the street, that the council may be informed as to the interest of the petitioners, he thereby represents to the council that he has the number of assessable feet stated in the petition; and, after the improvement has been ordered and the work done, he is estopped to say that he has a less number of feet subject to assessment.
    (Decided March 17, 1896.)
    Error to the Circuit Court of Hamilton county.
    
      Frederick Hertenstein, Corporation Counsel and William H. 'Whittaker, for plaintiff in error.
    The principal questions raised in this case are:
    1. Whether the decree in the above case of Ottomar Topf \ on behalf of himself et al., v. The City, is res adjudicada, and bars the defendant from prosecuting this action.
    2. Whether the signing of the petition foi;.the improvement estops him from claiming that his lot does not front on the street improved.
    3. Whether his lot does not front upon the street improved by reason of having a gate which affords access to and from the premises opening upon that street.
    Another question raised by the cross petition in error of defendant in error is, whether excessive installments of assessment paid can be credited upon subsequent installments or recovered back.
    
      The common pleas court held that the decree in the case of Ottomar Topf on behalf of himself, et al., v. The City of Cincinnati, et al., was a bar to this action, and dismissed the petition. The circuit court reversed the judgment of the common pleas court, holding, in a decision published in the Court Index, August 15, 1895:
    1. That a gate in a lot opening upon an improved street did not constitute a front so as to make the owner liable for the whole of the assessment upon that street.
    2. That the signing of the petition did not estop him from bringing’ this action.
    3. That the plea of res adjudicata by the city was not supported by the evidence.
    4. That the plaintiff was not entitled to apply excessive installments of assessment upon subsequent installments, or to recover back excessive payments
    The authorities in the state and elsewhere are numerous to the effect that a plea of res adjudicata applies not only to points upon which the court was actually required to form an opinion and pronounce a judgment, but to every point which properly belong to the subject of the issue, and which the parties, exercising reasonable diligence, might have brought forward at the time. 2 Taulor on Evidence, section 1573; Bridge Co. v. Sargent, 27 Ohio St., 233; Swenson v. Cresop, 28 Ohio St., 688; Martin v. Roney, 41 Ohio St., 141; Shaw v. City, 1 Nisi Prius Rep., 88; Lumber Co. v. City et al., No. 47,375, superior court.
    Defendant in error, the plaintiff below, signed a petition for the improvement. "We submit that defendant in error is estopped from claiming that he does not own the number of front feet on Carson avenue found by the decree in tbe former case.
    We refer to the opinion of the circuit court upon this branch of the case, that the defendant in error would not be entitled to have subsequent excessive payments credited on future installments. This follows logically from the principles laid down in Wilson v. Pelton, 48 Ohio St., 306, or Grosbeck v. City, 51 Ohio St., 365, for if under section 5858, Revised Statutes, an action to recover an illegal assessment, must be brought within a year after it is paid, credit should not be given for excessive payments after the expiration of the year.
    
      Charles F. Proste, for defendant in error.
    Defendant in error’s' lot is bounded by Carson avenue to the extent of 417 feet. We claim the lot does not front on Carson avenue, under the decision of the case of Haviland v. City of Columbus, 50 Ohio St., 471. The defendant in error in this case, signed a petition requesting this improvement to be made, but signed no numerical quantity of feet. He, however, did nothing more, actively or otherwise, in the furtherance of this improvement. We claim he is not estopped from objecting that any of the subsequent proceedings of said plaintiffs in error, have, with reference to himself, been conducted in violation of the assessment laws. 39 Ohio St., 281; 22 Mich., 104; 56 N. Y., 251; 26 Wis., 67., vol. 9, O. C. C. Rep., 243; 31 W. L. B., 335.
    These plaintiffs in error also plead res adjudicata, and allege that on the 25th day of May, 1893, in the ease of Ottomar Topf et al. v. The City of Cincinnati, superior court of Cincinnati, wherein this defendant in error was plaintiff, and the plaintiffs in error were defendants, for the same cause of action alleged in the petition. A decree was rendered, finding the equities of the case with the defendants, dismissing the petition, and dissolving the injunction.
    The decree rendered in that case, was to the effect, that said assessment of three and ninety-seven hundredths (3.97) dollars per front foot, was a valid assessment, and that the plaintiffs were not entitled to the relief prayed for, namely,, to have the said assessment of three and ninety-seven hundredths (3.97) dollars per front foot declared null and void. This, we contend, is as far as the decree extends. The question whether the lot of the plaintiff was assessed for too many feet toas not before the court, or raised by the pleadings, 10 O. S., 45; 5 Wall. (U. S.) 502.
    These plaintiffs in error, however, in determining the defendant in error’s proportionate share of the total cost of the improvement, assessed this rate per front foot upon 417 front feet, and the result of the calculation of that rate per front foot upon 417 is called an assessment, when, -in fact, it is the proportionate share, and is, therefore, an assessment in name only.
    And to successfully maintain res ctdjudicata, there must he a concurrence of the four conditions, viz.:
    Subject Matter, . . 1 21 vol. American
    Causes of Action, . i and English Cy.
    Parties, .... j" of Law, 227.
    Quality of Persons, j
    In the cases now before the court, there is no identity of subject-matter.
    The subject-matter in the prior suit, was the assessment upon each and every front foot, of property bounding and abutting upon this improvement.
    The subject-matter in the case at bar, is \ho, proportionate share, of this particular lot, of the total cost of this improvement.
    
      Burlen v. Shannon, 99 Mass., 200; Lea v. Lea, 99 Mass., 493; Porter v. Wagner, 36 Ohio St., 475; Washington Steam Packet Co. v. Sickles, 5 Wall (U. S.), 502.
    Section 5020 of the Code provides that “the cause of action so united, must affect all the parties to the action.” Having two causes of action, he could not be compelled to join. Merrill v. Lake, et al., 16 Ohio, 407; section 117, in Bliss on Code Pleadings; 38 Iowa, 468.
    Is the. defendant in error entitled to have ap ■ plied as a credit toward the subsequent installments to become due, the amount of the payment upon said assessment, already made by him, over and above what was really due, by the terms of the assessing ordinance, at the time of payment of said installments? We claim it is not an assessment, and an action brought for the recovery of the excess, would be brought under section 4982, Revised Statutes of Ohio, and not under section 5848, of Revised Statutes. Grosbeck v. City of Cincinnati, 51 Ohio St., 376; Wooley v. Staler, 39 Ohio St., 359; Wilson v. Pelton, 40 Ohio St., 310; Pike v. Cummings, 36 Ohio St., 213; Chamberlain v. Cleveland, 34 Ohio St., 551; Wewell v. Cincinnati, 45 Ohio St., 424.
   Minshall, J.

The original action was commenced in the court of common pleas of Hamilton county by John Manss against the auditor of the city of Cincinnati, and the auditor and the treasurer of the county, and sought to enjoin, in part, the collection of certain assessments that had been, made on his property for an improvement of Carson avenue in the city of Cincinnati, from Wabash to Glenway avenue. The case having been heard and decided against the plaintiff in the common pleas' was appealed by him to the circuit court; and was there heard and determined on the pleadings and evidence. The evidence showed, and the court found, that the property of the plaintiff abutted lengthwise 417 feet on the avenue, but did not in fact front thereon; that it fronted 121, and a fraction feet on Warsaw avenue, and a like number of feet on Laclede avenue. So that, under the rule heretofore adopted as to corner lots, it should have been assessed for the sum of 243i feet, only.

But it further appeared in the case, that the plaintiff, Manss, was one of the owners residing-on the avenue who petitioned the proper board for the improvement, and the improvement was ordered upon his petition and those who signed with him. Under section 2272, Revised Statutes, a petition signed by three-fourths in interest of the owners of property abutting upon the improvement, is the only authority to the city council to order an improvement to be paid for by assessments on the front foot. In the petition the plaintiff represented 417 feet, the length of his property on the improvement; and, in ascertaining whether under section 2272, Revised Statutes, the petition was signed by the requisite number in interest, received credit for 417 feet. And the question now arises, whether under these circumstances, he can bé heard to say, that he should be assessed for a less number of feet than he represented and for which he received credit, on the question whether three-fourths in interest had signed the petition. We think not. It would not only be contrary to equality to allow an owner a greater number of feet as a petitioner in procuring an improvement, than he is to be assessed on in paying for it, but it would defeat the equity and policy of the statute. The language, “three-fourths in interest,” as used in the statute, necessarily refers to the interest the petitioners have in the cost of the improvement. It represents three-fourths of the total number of feet on which the costs of the improvement are to be assessed. If it referred to the benefits of the improvement, or the value of the lots of the petitioners, it would place it in the power of those having the least to pay to compel an improvement largely at the expense of those deiiving a much less benefit from it. If the number of feet a petitioner represents himself as having on the improvement, is not the number on which he is to be assessed, in case the improvement is ordered,then there is no mode by which it can be determined from the petition, whether the requisite number have asked for the improvement. It is certainly not the business of the council or of the board of improvements, to ascertain for themselves, aliunde the petition, whether a petitioner has the number of feet subject to assessment, represented by him in the petition. What he represents in the petition must, as against him, be taken as true. He is estopped to say otherwise. For it must be remembered that the very purpose of stating in a petition the number of feet each petitioner has, is to .enable the council to determine, whether the petitioners, in the aggregate, represent three-fourths in interest of the property owners to be assessed for the improvement. And every one who signs a petition of this kind must be held to know the purpose and effect of it. There is nothing in. the case of Tone v. The City of Columbus, 39 Ohio St., 281, in conflict with what is here held. It was there held that Tone, by having signed the petition for the improvement, was not estopped from averring and proving that the petition had not been signed by the requisite two-thirds in interest, required by the statute under which the proceeding was had. But that is not this case. Manss claims that he has not the assessable number of feet represented in the petition for the improvement, which petition was signed by himself. A very different question from that in the case of Tone.

The view here taken of the case makes the consideration of other questions presented in argument unnecessary.

Judgment reversed, and petition of plaintiff below dismissed.  