
    VALIDITY OF ASSESSMENT FOR COUNTY DITCH.
    [Common Pleas Court of Delaware County.]
    George Grove v. County Commissioners of Delaware County, Ohio; and John Edwards v. County Commissioners of Delaware County, Ohio.
    Decided, June, 1907.
    
      Ditches — Assessment for — Discretion of County Commissioners — As to Necessity for the Improvement — As to Benefits — Injunction—Sections 4447, 4448, 4451, 4451a, and 4491' — Notice.
    1. An assessment for a county ditch, is not rendered invalid by reason of failure to serve notice on the property owners of intention to tile the ditch or its laterals.’
    
      2. Where the testimony is conflicting as to benefits, a court of equity will not disturb the apportionment of the assessment which has been made.
    3. Nor will the discretion of the county commissioners in determining that the improvement is demanded by the public health, welfare or convenience be interfered with, where those complaing failed to make any objections to the proceedings before the county commissioners.
   Seward, J.

These actions are brought to restrain defendants from putting an assessment against the lands of the plaintiffs in each of these cases, for the construction of a county ditch prayed for by C. L. Hoover et al.

Tt is claimed on the part of the plaintiffs in these cases that the assessment is excessive; that their lands are not benefited by the improvement, and, in the Edwards case, that the proceedings before the county commissioners do not disclose that a portion of the ditch would require tiling.

It is not seriously claimed that there are any errors of law in the proceedings before the county commissioners. The petitions allege that the proceedings are'contrary to the provision of the laws of Ohio and the Constitution of the state of Ohio, but this is pleading a conclusion of lave The petitions nowhere state in what respects the proceedings or the acts of the county'commissioners were in contravention of any law of Ohio or the Constitution of the state of Ohio; and, in fact, the evidence on the trial of the case failed to disclose wherein any of the acts were in contravention of either the laws of Ohio, or the Constitution.

It is claimed in the Edwards case that he had no notice that the ditch was to be tiled. As to the question of tiling raised in the Edwards ease, Section 4447 of the Revised Statutes clothes county commissioners with the power to construct, widen and deepen ditches when the same is necessary to drain any lots or lands, and will be conducive to the public health, convenience or welfare, and may cause the same to be boxed or tiled, as provided in said section. ' •

Section 4448 contains a definition as to what shall be included in the word “ditch,” and says: That it shall include side, lateral, spur or branch ditches, etc.

Section 4451 provides as to what the petition shall contain, and does not provide that it is necessary that the petition disclose as to whether the proposed improvement or ditch shall be tiled or otherwise.

Section 4451a provides for the notice to the county commissioners and to the land-owners, or those interested; and it nowhere provides that notice shall be given of the intention to tile the ditch.

It seems to the court that the commissioners, in these proceedings, have followed the provisions of the statutes in this regard; and so the court does not find that there is any error in these proceedings. A question might arise under Section 4491, which is' the section of..the statute under which these proceedings were brought. That section provides: Where any proceedings are brought to enjoin any tax assessment, levied or ordered to be levied, for the labor and expense aforesaid, if there is manifest error in the proceedings the court may allow the plaintiff in the action to show that he has been injured thereby, and may, on application of either party, appoint such person or persons to examine the premises or to survey the same, or both, as may be deemed necessary. It further provides: And without finding error, the court may correct any gross injustice in the apportionment made by the commissioners. This is, substantially, the provision of the statutes governing these proceedings.

The court finds no error in the proceedings, and finding that it was not necessary, under the statute, that the plaintiff should have notice of the intention to tile the ditch, or laterals, and finding that the plaintiffs each had the notice required by the statute of these proceedings, these findings eliminate all features of the case, except the question of whether the evidence adduced at the trial of the case shows to the court that there was any gross injustice in the apportionment.

The testimony is conflicting upon the question of the apportionment of the assessment. There is some testimony tending to show that Edwards was not benefited in any respect by tfiis improvement, while there is testimony tending to show that he received quite considerable benefit by virtue of the improvement. The court, considering the testimony as a whole, is unable to find that there was any gross injustice, such as is contemplated by the statute in these apportionment proceedings.

Recurring 'to another feature of the case: Have these parties, or has either of them, the right to this remedy by injunction ? In the 15th Ohio State, 64, it is held that:

“Where a party on whose land a ditch has been wholly or in part constructed, has stood by and failed to resort to any remedy, legal or equitable, until after the ditch was made, a court of equity will not interfere by injunction to-prevent the collection of such assessment, even if it be assumed that the proceedings of the commissioners have so far failed to conform to the provisions of the statutes as to render them wholly illegal and void in law.”

The 53d Ohio State, page 628. The Supreme Court hold that:

“Where, under the ditch law of this state, a ditch has been ordered and established by the county commissioners, and the construction paid for from the county treasury, on certificates of the engineer appointed to superintend the work, an assessment made to reimburse the county for the payments made from its treasury can not be enjoined by the land-owners on the ground simply that the ditch was not constructed according to the contract specifications and does not drain their lands. An action upon the bond of the engineer or the contractor, or of both is the proper remedy in such case, and if not adequate, it is from the fault of the land-owners in not having made their objections to the engineer, or in not having caused his removal for dereliction of duty.”

In the 3d Circuit Court Reports, page 617, 2d syllabus:

‘ ‘ A court of equity will not determine the question of benefits accruing to the lands lying along the line of a proposed ditch, in the absence of all collusion or fraud on the part of the board of county commissioners.”

There are no such allegations in this petition; in fact, it is not claimed.

I am well aware that Section 4491 is broad in its scope and intended to give relief in a proper case where injustice is shown. The plaintiffs cite 17 Ohio State, page 1. This is a case where there were fatal defects in the proceedings, and the court holds in the 2d'syllabus:

“Under ’Section 4491 a court in such a case ought not to perpetually enjoin an assessment, but ought to set aside the proceedings and orders of the commissioners and allow the parties seeking such injunction to pursue the remedy authorized by that section. ’ ’

The plaintiffs also cite 30 Ohio State, 590, at page 597. This is a case in which it was sought to quiet the title to the plaintiff’s lands which had been sold for non-payment of a ditch assessment. The plaintiff, in his brief, quotes from page 597, to the effect that the plaintiffs should have-been allowed to come in and show wherein they have been injured. This was under the peculiar allegations of the petition of that case. But, the court say, at the bottom of page 596 :

“They (the plaintiffs) properly and necessarily-asked in their petition that these proceedings might be set aside for errors which were specially assigned; ’ ’ and at page 598 the court say: “Nothing more could have been exacted in the proceedings. The assessments and lettings had all been found to have been regular and legal. ’ ’

As to the claim that the public health, welfare and convenience did not demand the improvement, that is a matter which the commissioners had full power, under the statute, to determine, and their determination of that question is binding upon the court.

These parties had full notice of these proceedings, and failed to appear or object to the proceedings; and the court does not think they" are entitled to the extraordinary remedy of injunction. There is no prayer in these petitions that these proceedings be set aside or corrected in any respect whatever. The prayers are simply for an injunction and other equitable relief.

There will be a decree entered for the defendants in each case.  