
    City of Toledo v. Sheill. Same v. Eversman. Same v. Beckler.
    
      Corner lots — Presumption as to frontage — Erection of dwelling or business house on lot — Effect of style of architecture and use of building — Side entrances.
    
    1. Where the boundary lines of a corner lot extend along one of its two abutting streets a materially greater distance than along the other, a presumption arises that it fronts upon the latter street.
    2. Where the shape and dimensions of a corner lot raise a presumption that it fronts on a particular street while vacant, such presumption continues after it has been improved, unless rebutted by the style and character of the improvements.
    3. Where a single business house is erected on a corner lot, .the front of which, according to its plan of construction, or style of architecture, accords with the presumed front of the lot, while the latter was vacant, such front is not changed, although the building is provided with doors and halls that permit an extensive use of the other, or lengthwise, street •and afterwards such use is freely made by the occupants of the building.
    4. Where a dwelling house is erected on a corner lot, the front of which, according to its plan of construction or style of architecture corresponds with that of the lot, when the latter was vacant, the original front is not changed, although the building is provided with entrances opening on the lengthwise street, that are extensive^ used by its occupants and appurtenant structures erected that are accessible only from the latter street. Such use of the side street is incidental only to the occupation of the dwelling house.
    5. Where both a dwelling house and a business house are ercted separately on a corner lot, the former fronting on the breadthwise street, and the latter on the lengthwise street, so much of the lot as the latter building occupies, or is clearly used as appurtenant to it, should be held to front on the street which it face's.
    (Decided November 26, 1895.)
    ERROR to the Circuit Court of Lucas county.
    
      Charles F. Watts, Horace A. Merill and Julian II. Tyler, for plaintiff in error.
    
      Geo. P. Kirby, and Chas. II. Lemmon, for defendants i‘n error.
   The facts will be found in the opinion.

Bradbury, J.

The city of Toledo, in the course of proceedings instituted for the improvements of certain of its streets, sought to assess the “cost and expense” incurred for such improvements upon the abutting property ‘ ‘ by the foot front of the property bounding and abutting upon the improvement,” pursuant to the provisions of section 2264, Revised Statutes, passed March 5, 1890 (87 Ohio Laws, 43). This court in the case of Haviland v. The City of Columbus, 50 Ohio St., 471, was required to construe this language, and it there held that where a municipal corporation sought to assess the cost and expense of improving a street upon the abutting property by the front foot, regard must be had for the real front, which was a matter of fact depending on the manner in which it had been laid out, built upon, occupied and used by the owner, and where a lot abuts lengthwise on an improvement, but fronts breadthwise on another street, it should be assessed for such improvement to the extent of such lengthwise frontage only. And in the case of Sandrook v. Columbus et til., 51 Ohio st., 317, this court held that in the case of an unimproved, lot lying on a corner of two streets and extending along one of them 371 feet and along the other 150 feet, it should be deemed to front on the former street.

The city of Toledo, in the cases under consideration. reargues these questions, especially those in the Haviland ease, and asks their reconsideration. The reasons advanced by counsel for the city are not without force, but do not convince us that either of those two causes were erroneously decided, and we reaffirm the doctrine they announce.

Each of the three cases under consideration, however, has special features that distinguish it from both those cases. While we do not hold that a corner lot upon which a single structure stands, or a single main structure with appropriate or incidental minor ones appurtenant to it, may not have two fronts — one on each street — yet that can only occur under special or peculiar circumstances, which we do not attempt to forecast. The question of frontage should be determined according to the ordinary acceptation of that term. There is nothing technical or abstruse connected with the subject. The common knowledge of mankind is usually amply sufficient to determine the fact whenever a controversy arises respecting the front of a lot. Where a lot is unimproved, a glance at the plat is generally enough; if the lot is rectangular, with two of its parallel lines distinctly longer than the other two, the usual form of town and city lots, the mind at once recognizes it as fronting on the street which runs along its shorter line, or end. And although the lot may not be rectangular, yet if its length along- one street is clearly and , considerably greater than along the other, the same recognition occurs. Doubtless a lot may have such shape that the question of its frontage might be of difficult solution, but such cases are exceptional, and should not affect the general question.

In the case of a corner lot in the usual form, therefore, a natural inference arises that its narrow side, or end, is its front, because that accords with our common knowledge and experience of such matters. This constitutes a presumption of fact. Should the lot be improved, this presumption continues, unless there is something in the nature or character of the improvement to rebut it. Doubtless the plan or style of the structure, in connection with the uses for which it was designed, will in many instances overcome this presumption, and in every instance becomes a material factor in determining the question of frontage. The fact, however, that the structure, whether designed for a dwelling house or a place of business, is so arranged that the side street, so called, can be used for the convenience of the , occupants of the building, and is in fact, extensively used, are not enough to establish a change of front. In the case of dwelling houses, especially, it is within the common knowledge of every one, that, in many instances, its occupants habitually use what they call and understand to be a side entrance, without any notion that such use, in contemplation of law, changed the front of the structure, and consequently, the front of the lot upon which it stands. There can be no change of the front of a town or city lot in law, unless there is a change in fact made. The actual and the legal frontage must be identical.

Where a single building has been erected on a corner lot, the style of architecture alone, or that together with the purpose for which it was designed, and the arrangement of the grounds and outhouses, may indicate that its real front is towards the side street, so called. In such ease, if the character of the improvements satisfactorily indicates that the entire lot is to be used with reference to or in connection with such improvements, a fair inference would arise that the entire frontage was changed. But if the character of the building or other improvements, fronting on the side street, discloses that only a portion of the entire lot was intended to be used as appurtenant thereto, then the frontage of that part only which was to be so used would be changed; unless where such structure being placed on the original front end, would in changing the front of that part of the lot necessarily change the frontage of all that part of the lot which might lie between the structure and the rear end thereof. And, doubtless, wherever a structure fronting ok the side street, appropriated a strip through to the other side of the lot, all the lot lying between the strip so appropriated and its rear end would have its frontage changed.

In applying these principles to the several cases under consideration, it is necessary to ascertain the form of the several lots and the character of the improvements made on each, and existing at the time the city began proceedings to improve the respective streets upon which the lots were claimed to abut.

In the case of Toledo v. William Sheill, the city contended that the defendant’s lot abutted on Erie street as well as on Stickney avenue, and attempted to assess the lot for its full length along the former street, to ¡Day the cost and expense of improving that street. It is a rectangular corner lot extending along Erie street one hundred and twenty feet, and along Stickney avenue twenty-seven and one-half feet; upon it stands a dwelling house, so constructed that its front was consistent with that of the lot when vacant. Another building fronting sixteen feet on Erie street and extending back twenty-seven feet, then stood on said lot, the front half of which its owner, the defendant, occupied for a shoe shop. This building stands upon the rear end of the lot, where the lot is considered with reference to its front on Stickney avenue. According to the principles which we hold should determine the fact of frontage, the lot in question, if vacant, would front on Stickney avenue, and as the style of the dwelling house is as consistent with the continuance of that frontage, its erection did not effect a change in that respect. The other building, however, clearly and distinctly fronted on Erie street, and its front end, or room was designed for and used as a workshop for the owner ; a use nowise appurtenant to the dwelling house, but, on'the contrary, was independent thereof. The style of this building and the chief purpose for which it seems to have been designed indicate a fronting on Erie street. What in relation to this building is unmistakably a front door, opens immediately upon Erie street, and affords the only direct entrance to the shoe shop. This latter building stands on the rear end of the lot when viewed from Stickney avenue, and extends back nearly its entire breadth, so that the building substantially covers the rear sixteen feet of the lot. To that extent the lot should be held to front on Erie street, and the assessment made accordingly.

In the case of Toledo, v. Eversman, the agreed statement of facts shows that the real estate in the petition described, being lot number six hundred and ten (610) in Oliver’s addition to the city of Toledo, Lucas county, Ohio, as laid out and platted, abuts fifty (50) feet upon Broadway street, and one hundred and fifty (150) feet upon Logan street, and is situate on the southwesterly corner of said streets.

Broadway street runs northeasterly and southwesterly, and is intersected at right angles by Logan street.

The entire lot is covered by a brick building, one hundred and twenty (120) feet of which, extending northwesterly from Broadway street, is three stories in height, and the northwesterly thirty (30) feet thereof is two stories in height. This building is used by the plaintiff for the purpose of carrying-on the business of dealing in hardware and stoves, and of manufacturing heating furnaces.

The first story of the three-story part is divided into two store rooms, which extend the entire length of said part; the store rooms are connected by two arch-ways in the brick partition extending between the same.

In that part of each of the store rooms abutting upon Broadway street there are large double doors which are used for the purpose of ingress and egress from and to said Broadway street, and on each side of said doors are large windows which are used for the purpose of displaying’ the goods and wares of the plaintiff, and for the purpose such windows are generally used.

In that part of the three-story building abutting upon Logan street there is no door except at the northeasterly end thereof, which is used for the purposes of ingress and egress from and to said Logan street.

Adjacent to this door and in the two-story part, is a doorway twelve feet in width leading into a hallway, and connected with stairs by means of which access is had to the second and third floors. To this hall there is access from the store rooms above mentioned.

The two-story portion of the building is used by the plaintiff as a barn in which is kept his horses and wagons, used by him in carrying on his business and for no other purpose, and from this opens onto Logan street a door wide enough to admit the passage of a horse and wagon. At the northwesterly end of said store rooms there is a large double door about five feet in width through which access is obtained to the two-story part. Westerly of this doorway, and at the northwesterly end of said store rooms, there is a window.

The entire two-story building is used by the plaintiff in carrying’ on his business, and for no other purpose. The third floor of the building is used as a public hall, and access to the hallway above mentioned is had both from the Logan street entrance and from the store rooms above mentioned. .

At the corner of Broadway and Logan streets there is a window extending upon Logan street about two and one-half feet and upon Broadway street about two and one-half feet. On the second floor of both buildings, and upon the third floor of said building, there are windows upon both the Broadway and Logan street sides. •

The record contains a photograph of the building, showing that, according to its style of architecture and plan of construction, it fronted on Broadway, but was provided with openings admitting of the free use of Logan street; and the evidence given by the owner himself shows that the Logan street entrances were freely used in connection with his business. One of those entrances was the chief means of ingress and egress to and from a public hall in the third story. Another of them seems to have been the only entrance to that part of the building used for a barn.

The circuit court found that the building and consequently the lot fronted on Broadway alone. This holding was correct. The building wah an entirety — a single structure designed for conducting a particular business — and of such form and style, that according to the common understanding and notion respecting the subject it fronted on Broadway. One side extended along Logan street, and naturally the use of that street would be both convenient and advantageous to its occupants. In view of this situation the owner in the plan of construction provided facilities for such uses, and afterwards those facilities were used at their pleasure by the owner, his employees and customers; this use, however, neither changed the front of the building, nor gave it a double front; it was a use incidental, merely to a structure thus favorabty situated whose plan of construction gave it a recognized front- in another direction. Where a building has been constructed after a plan that indicates unmistakably or even with reasonable certainty its front, the circumstances that facilities for side entrances have been provided and are afterwards used by its occupants, and those who for social or business purposes, visit the house, can operate only slightly, if at all, to effect a change in this particular.

In the case of Toledo v. Annie Beckler, an agreed statement of the facts discloses that: “The real estate in the petition described, being’ lot number two hundred and six (206), in Knower’s addition to the city of Toledo, Lucas county, Ohio, as platted and laid out, abuts forty (40) feet upon Knower street, and one hundred and six and 26-100(106.26) feet upon Maumee avenue. Knower street extends east and west, intersecting Maumee avenue at right angles, and said lot number two hundred and six is (206) situate upon the northwest corner of said streets. The north end of said lot abuts forty (40) feet upon an alley.

“May 5, 1890, there was, and continuously ever since said time, there has been upon said lot a two-story frame dwelling, with a one-story addition which was at said time, and continuously ever since has been, used and occupied by said plaintiff as her residence.

“There was not, at said time, nor is there now any other building upon said lot, except a small shed, which was and is located upon the line of said alley, and was and is used for storing fuel.

“The narrow part of the two-story, or main part of the house, faces Knower street, and the long side thereof faces Maumee avenue. In the two-story part facing Knower street, there was and is a door from which extends a walk leading to the street; in the two-story part of the house facng Maumee avenue there is no opening except windows; on the northerly side of the two-story part there was and is a one-story addition, which is not as wide as the main part of the house; in the side of this addition, facing Maumee avenue, there is a door opening onto a porch, which extends along this side of the addition, and there was and is a walk leading from said Maumee avenue to said porch, and on a line with said door, there was and is a door opening from the sitting’ room, in the main part, onto this porch; the first floor of the two-story part is divided into three rooms and a hallway; the door facing Knower street opens into a hallway; the hallway has therein a stairway and two doors, the one leading to the sitting’ room, and the other into what is used as a parlor; the room next to Knower street is used as a parlor or front room, and has windows on the Knower street and Maumee avenue sides; behind the parlor is an ordinary family sitting room, with a bedroom off it; the one-story addition constitutes the dining room and kitchen, from which is a door leading onto the porch above described, and a door in the north end, opening into a small woodshed.

“There was not, at the time aforesaid, and has not been, any fence around this lot. The gables of the two-story part are upon the north and south ends thereof; the gable of the one-story part is on the north end thereof, and the roofs on both parts of the building slope east and west.

“The part of the house facing Knower street is what is known as the front elevation, and there is no other front elevation thereto.

“It was further admitted by the plaintiff that if she were called upon to testify, she would testify that the entrances to her house from Knower street and from Maumee avenue were both used for the purposes of ingress and egress to and from said house, but that the family most frequently used the entrance on Maumee avenue for said purpose. ”

In addition to this agreed statement, a photograph of the premises was introduced in evidence which plainly shows that the dwelling house, according to the plan of its construction, should be held to front toward Knower street. The circuit court held that the premises fronted on Knower street. We think this holding is correct. According to the principles we hold should be applied to determine the question of frontage, the lot, if vacant, would front on that street. A dwelling house stands on the lot, the front of which, while it is not indicated with entire clearness, may fairly be held to face in the game direction. It has an entrance from Maumee avenue which its occupants and many others having occasion to visit them find more convenient than the entrance from Knower street, and on that account use it more frequently than they use the latter entrance. This use, however, as we have seen, is entitled to very little weight upon1-the question of frontage in any case, and especially respecting the front of a dwelling house, where the use may vary with the ea-price of its occupants, or change entirely with a change of tenants.

Judgment accordingly.

Spear, J.,

(concurring).

I assent to the judgments rendered in these cases, and others of like kind decided at the same time involving the same question, on the principle of stare decisis. The judgment in the Haviland case pronounced June 20, 1893, was rendered by a divided court. It received, at the time of its rendition, neither the assent of my judgment nor my vote, although no formal dissent was entered of record. April 24, 1894, the question was again presented to this court in Sandrock v. Columbus, (51 Ohio St., 317), and the same principle announced, resulting in a reversal of the judgment below.

Time and space are not. taken here to give a statement of the ground of dissent of the minority, for, as it seems to me, such statement would be regarded, using common parlance, as a “back numbereven though it might be possible to demonstrate that some other construction of the statute would have been sounder, more scientific, or more philosophical, or more scholarly. The law was settled long ago; the rule given, admittedly an equitable one, was acquiesced in by the people at large, and by most of the courts of the state, and numerous controversies, in Columbus and other cities, were adjusted and improvements made in consonance with the rule given, on the understanding that the question was settled and ended; and it would seem that it should be so regarded. Stare decisis, et non quieta movere.

Shauck, J.,

(dissenting).

Attention is due to the terms of the statute conferring upon municipalities the power of assessment which has been exercised in these cases. It provides that “where an improvement is made of an existing street, alley or other public highway, * * the costs and expenses shall be assessed by the council on the abutting * * lots and lands in the corporation * * by the foot front of the property bounding and abutting on the improvement. ’ ’ Section 2264, Revised Statutes. The assessment contemplated is not upon buildings, but upon lots and lands. It extends to all abutting lots, whether they be used and occupied or vacant. In the case of lots that are built upon, the power is not limited by architectural elevations nor by modes of ingress and egress. To make lots and lands subject to the assessment it is necessary only that they bound and abut on the improvement.

The relation of these words of the statute shows plainly enough, that the general assembly used them in their popular sense, regarding “bounding ” and “abutting-” as synonyms, and “front” as indicating the extent to which a lot is bounded by the highway for whose -improvement the assessment is made. And it is equally clear that the general assembly shared in the popular understanding that a corner lot fronts on both the streets by which it is bounded. That this is the sense in which these words are used is indicated not only by the provision quoted, but by many others relating to the control and improvements of municipal highways, suchas the requirements as to the frontage owned by those who sign petitions for the improvements, consents to the granting of franchises in streets, and the provisions relating to the cleaning of streets and the construction and maintenance of sidewalks and sewers. It is provided (Rev. Stat., sec. 2333) that no tax shall be imposed for the construction of a sidewalk upon property whose owners “have contracted and maintained sidewalks in front of such property.” Will it be said that the owner of a corner lot is exempt from the construction of a walk upon one front of his lot because he has constructed and maintained a walk upon the other? If it be answered that the use of the plural, “sidewalks,” prevents the application to that section of the views here expressed by the majority, the reply is that in the view of the legislature it requires a plurality of walks to occupy the fronts of corner lots.

The provisions of secs. 2379 and 2383, inclusive, are more than sug’gestive. They authorize municipalities to assess the expense of constructing sewers “upon the, feet front of the lots and lands, by or through which” they pass. Certainly a lot cannot front upon a sewer, as the word “front” is defined by the majority in these cases. It is provided in section 2383 that “the council may exempt from assessment, such portion of the frontage of any lot .having a greater frontage than its average depth, and so much of anj frontage of corner lots, as to it may seem equitable, and charge the deficiency caused by such exemption on the whole frontage tax pro rata.” In view of this provision, the' meaning of these words is not a matter of inference, but the subject of express declaration. Section 2269 prescribes rules for making assessments. As amended March 27, 1884, it contained the following provision: “And if, in making a special assessment by the foot front, there is land bounding or abutting upon the improvement not subdivided into lots, or if there be lots numbered and recorded, boimding or abutting on . said improvement and lying lengthwise on said improvement, the council shall fix in like manner the front of such land to the usual depth of lots, so that it will be a fair average of the depths of lots in the neighborhood, which shall be subject to such assessment. ” Before the assessments whose validity is now considered (March 11, 1887), the section was amended by omitting the italicised portion thereof. That provision was inserted in the act of 1884, so that corner lots might not be assessed upon the whole of their long frontage. It was omitted from the act of 1887, so that they should thereafter be assessed upon such entire frontage. That this is the true legislative meaning of the terms under consideration, is scarcely less manifest in other provisions of the statute.

The use of the terms in this sense is not only in conformity with popular usage, but it is technically accurate. To front, is to be in a confronting or opposed position; to face toward; to meet.

A somewhat extended examination seems to warrant the observation that there is but one exception to the numerous cases in which, either by express holding or by clear implication, to front and to abut have been adjudged to be equivalent phrases within the meaning of assessment acts. The act under which extensive street improvements were undertaken in the city of Columbus (O. L. 72, p. 153), was held to be unconstitutional; but it was also held that those who promoted the improvement were estopped to assert its invalidity, and that as to them the act should be enforced according to its terms. Section 24 of the act provided that the city council should “not have the right to authorize any improvement unless the owners of two-thirds of the feet front of the property abutting on any street or avenue to be improved shall petition the city council for the privileges of this act. ” In City of Columbus v. Sohl, 44 Ohio St., 479, this court held that the petition presented to the council in that case was sufficient, although the record showed that to reach that result it was necessary to count the lengthwise frontage of all the petitioners, even of those whose lots were vacant. The 14th section of the act provided that the cost of the improvement should be ‘ ‘ assessed equally per front foot upon the property fronting or abutting on the improvement,” and this court adjudged that assessments upon the entire long frontage of corner lots were valid even though they exceeded the value of the lots after the improvement was made. The provisions now under consideration (section 2264), were before this court in Lima v. Cemetery Association; 42 Ohio St., 128. It was held that a cemetery fronts upon an alley. The conclusion is based upon the obvious consideration that all lands front all the highways by which they are bounded. How that case could have afforded any other reason for the conclusion reached, does not appear.

In Cincinnati v. Seasongood, 46 Ohio St., 296, this court determined a question arising out of the amendment of section 2269 above shown. The question was whether the assessment for the improvement of a street upon which a corner lot fronts lengthwise is valid for the entire length of that frontage as provided in the act of March 1.1, 1887, or whether it should be restricted as required by the act of March 27, 1884. The Court reached the conclusion that the extent to which the property could be assessed was determined by the statute in force at the time of the passage of the improvement ordinance. The contention of counsel and the decision of the court are vanity Unless, under the act of 1887, the assessments now before us are valid.

The report by Sayler, J., in Shehan v. The City of Cincinnati, 25 W. L. B., 212, shows that in that case the superior court, taking the same view of the statute and of Beasongood v. Cincinnati, as it has taken in rendering the judgments now under review (considered with these cases and reversed), adjudged that the assessment was valid upon the entire long frontage of a corner lot. At about the same time that court, under the same statute, rendered a similar judgment in Elder v. Cincinnati. The judgments whichit then rendered wereaffirmed by this court May 28, 1892. 27 W. L. B., 375.

In the City of Des Moines v. Dorr, 31 Iowa, 89, the validity of an assessment upon the entire long frontage of a corner lot was upheld. The court disposed of the point now considered as follows: “These premises are. situated at the intersection of Sixth and Walnut streets, being1 a corner lot with twenty-two feet front on the latter' street and one hundred and thirty feet front on the former. It will thus be seen that the lot has two fronts, as every corner lot necessarily has, because its face is opposite to and fronts on two different streets. ’ ’

The same conclusion was reached in Morrison v. Hershire, 32 Iowa, 271, the court saying: “Someof them are corner lots, and are so situated that the streets bounding each one of them upon its end and side are improved. These lots, in fact, front on two streets — have a double frontage, and are, therefore, properly so assessed.”

The same conclusion was reached in Lawrence v. Killam, 11 Kan., 499, under a statute providing that “the assessments shall be made on all lots and pieces of ground abutting on the improvement according to the foot front thereof. ’ ’

In People ex rel. Taber v. Adams, 18 N. Y. Supp., 443, the frontage of a corner lot was thus determined: “A corner lot faces or fronts on two streets. It has a frontage on both streets, although the house built upon it may have its principal door for egress and ingress facing only one street.”

It would exhaust patience to cite all the cases in which this view of the words and phrases now under consideration has been taken. A few more of them are Bonsall v. Lebanon, 19 Ohio, 418; Springfield v. Green, 120 Ill., 274; Wilbur v. Springfield, 123 Ill., 400; Scott County v. Hinds, 50 Minn., 204; Michener v. Philadelphia, 118 Pa. St., 535; Joyes v. Shadburn, 13 S. W. R., 361; Weeks v. Milwaukee 10 Wis., 258; Tracy v. Chicago, 24 Ill., 500; Bacon v. The Mayor of Savannah, 91 Ga., 500. It is apparent that the legal meaning of these terms had been judicially settled before they were used in the statute before us. Here is no occasion for the application or discussion of rules of interpretation supposed to be of an equitable nature. The constitutional validity of the statute is confessed and the meaningof its provisions is entirely clear. Its enforcement according to its obvious intent is required by that subordination to the law which is due from all courts and especially from those that are not otherwise subordinate. Nor do the conclusions reached by. the majority in these cases leave much occasion for pointing out the confusion that is to ensue. These observations, perhaps, sufficiently intimate the opinion that the judgments of the superior court of Cincinnati should be affirmed, those of the circuit court of Lucas county reversed; and that Haviland v. Columbus, should be overruled.

Burket, J.,

(dissenting).

I base my dissent in all of these cases upon the following considerations;

These cases, with others, were brought here for the purpose of having this court again consider the principles of the Haviland case, and if possible overrule that case, and therefore I feel at liberty to here consider the question anew.

In that case I contended, and I now contend, that the matter of assessments upon corner lots for street improvements is governed alone by the constitution and statutes on that subject. That there is no statute warranting the rule of the Haviland case, and that corner lots are liable to be assessed by the foot front on their entire length and breadth, subject to the restriction that the assessment can not exceed the amount of the special benefit, as was held in the Chamberlain case, 34 Ohio St., 551, and also subject to the restriction of section 2283, Revised Statutes, as to double assessments within a period of five years, and subject further to the twenty-five per centum limitation, when that limitation is applicable, subject still further to such other limitations in special cases as are provided by statute.

The majority having again affirmed the principles of the Haviland case, the question must be regarded as settled, and to be followed by this, as well as the lower courts, unless changed by the general assembly as to future assessments.  