
    ASSESSMENTS.
    [Lucas (6th) Circuit Court,
    November 1, 1901.]
    Haynes, Parker and Hull, JJ.
    Kate Hendrickson et al. v. Toledo et al.
    1. Presumption in Pavor or Public Files or Records.
    The presumption from a petition for a' street improvement accompanied by a resolution ordering the improvement, identified by the city clerk as original papers, and appearing to have been duly recorded, together with memorandums on the backs of the papers indicating, in proper continuity, the action of the council thereon, is sufficient to impose the burden of proof upon persons or property owners who, in an action to enjoin the assessment, deny having signed the petition. In the absence of evidence impeaching such records or files, they should be sustained,
    2. Waiving Jury not Fatal Irregularity.
    The fact that a jury is waived in proceedings under Secs. 22-32, Rev. Stat., ei seq., to appropriate certain property through which the city has been petitioned to open and extend a street by the property owners thereon, is not such an irregularity as to invalidate the award made by the probate judge to whom the question of compensation was submitted, especially where it does not appear that there was any fraud, collusion or unfairness in the transaction, that the award is excessive, or that the complainants were prejudiced in the slightest degree. Whether there is any irregularity in such a proceeding, quaere?
    
    3. Failure'to Question such Method Estops.
    Where no question is raised as to such proceedings either by the city or the persons from whom the property was appropriated, but both seem contented with the award, and the city pays the award and the owners accept the same and the city takes possession of the land and holds the same, the petitioners for the improvement cannot be heard to complain, even if the proceedings were irregular, in the absence of averment oi fraud or prejudice.
    
      4. City Acts as Trustee — Good Faith Required.
    Where a city brings an appropriation proceeding in the probate court against the owners of the property sought to be appropriated, in conformity to a ■ petition therefor and asking that the costs and expenses thereof be assessed against the petitioners as above stated, the city acts in the capacity of a trustee for such petitioners to acquire such property. Therefore, it devolves upon the city to exercise good faith to preserve and protect the rights of the petitioners.
    5. Burden or Proor as to Benerits.
    Where it is averred by the plaintiffs in an action to enjoin assessments for a street improvement that they are not benefited by the improvement, the introduction of the petition for the improvements signed by the plaintiffs and setting forth that they believe and acknowledge that their properties will be benefited thereby, casts the burden on them to prove the failure of benefits. Whether it estops them from such declaration, quaere?
    
    6. Assessment Sustained — Estoppel—Contract.
    Where the improvement petitioned for is one which the council has power to legislate for and make, and where the only question of legality is that touching the right to assess the costs back upon the property, and the parties expressly agree that it shall be so assessed in accordance with Sec. 2267, Rev. Stat., this is sufficient to make the assessment valid; and whether the petitioners are bouud by contract or estoppel is not material. The court is, however, of the opinion that petitioners are estopped, and this even though it may turn out to be an agreement invalid because the city was not authorized to enter into it; that it is not necessary for the city to invoke the rule in Lewis v. Symmes, 61 O. S. 471.
    Appeal.
    Beard & Beard, for plaintiffs.
    M. R. Brailey and C. S. Northup, for defendant.
   PARKER, J.

This case is here on appeal. The action was brought to enjoin the collection of assessments made upon the lands of the plaintiffs on account of the expense, of extending Colfax street, in the city of Toledo ; the expense assessed being the cost of the lands acquired by the city for the extension of the street, i. e., the expense incident to the acquisition of these lands by appropriation proceedings.

Plaintiffs contend that this is an illegal assessment, relying upon the decision of Cincinnati, L. & N. R. R. Co v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229], which overrrules Cleveland v. Wick, 18 Ohio St. 303, and holds that so much of Sec. 2284, Rev. Stat., as provides for the. assessment of this kind of expenses upon lands benefited is invalid.

Plaintiffs do not aver in their petition in this case that the improvement was not petitioned for by them or others in accordance with the requirements of Sec. 2267, Rev. Stat., which section requires that as a condition precedent to levying an assessment upon lands to be benefited, there shall be a petition signed by two-thirds of the, owners of the lands to be charged. It is averred in the petition, however, that the assessment of this cost was not made by a jury, as provided by Chap. 3, Tit. 12, Div. 7, Rev. Stat., but that the city instituted an action for the appropriation of this property in the probate court, where a jury was waived, or was not called, and that by agreement or consent the value of the two pieces of land taken was fixed at $1,560 — $600 to one proprietor and $900 to another — and that thereupon judgment for the payment of this amount was entered.

It is said that this action was irregular, and rendered the proceedings invalid, so that even if there were no other objection, the assessment ought not to stand. The petition also avers that the lands or lots of the plaintiffs upon the street were not specially benefited by the improvement, and that therefore they could not be assessed.

The answer admits the averments of the petition as to the various steps taken by the common council in establishing this improvement, the opening up of this street, and the appropriation of the property for the improvement. It denies that the plaintiffs were not specially benefited. it denies in effect that there were any irregularities in the proceedings in the probate court; and it avers with respect to the petition for this improvement as follows:

“ Further answering, these defendants say that prior to the time of the adoption of the resolution, the plaintiffs herein or their grantors, filed a petition in writing with the common council of the city of Toledo, praying the said city of Toledo to enact the necessary legislation for the appropriation and condemnation of the property necessary for the extension of said Colfax street as aforesaid, and consented therein that an assessment might be made by the said city of Toledo upon the lands of said petitioners to defray the cost and expense, including all awards ¿rising out of, or resulting from, the condemnation1 and appropriation of said property; that said parties so petitioning the said city of Toledo, knew at the time of the filing of said petition with the common council of said city, that if said improvements were made, all of the property abutting upon said Colfax street when opened and extended, as petitioned for, would be assessed for the appropriation and condemnation of said property, in proportion to the special benefits conferred thereby; that the said city of Toledo enacted said legislation in pursuance of and in reliance upon said petition, and in reliance upon their right to assess the cost and expense occasioned thereby upon all the real estate bounding or abutting upon said Colfax street when so opened and extended as aforesaid ; that these plaintiffs knew at the time of the filing of said petition with said common council,, that said property so bounding and abutting upon said Coliax street would be specially benefited by the making of said improvement over and above the general benefit that would result to the remainder of the said city of Toledo therefrom.”

These averments of the answer are denied by the reply ; so that it will be observed that the issue as to whether the plaintffs signed the petition for this improvement is raised by the answer and reply.

The evidence upon the issues as made by the pleadings has been submitted to this court. Plaintiffs contend that it does not appear from this evidence that they or their grantors petitioned for this improvement.

Exhibit 1 introduced in evidence, consists of two sheets, with a paper back, upon which back appear several endorsements. The first sheet is a petition which (omitting a part of the heading, which cannot be made out on account of the way it is pinned in) reads as follows: “To the Hon. The Common Council of the City of Toledo :

“Gentlemen: — We the undersigned, owners of the property dé-scribed opposite our respective names, the same abutting on Colfax street and Colfax street extended, between Shaw avenue and Lawrence avenue as indicated, desiring that Colfax street may be opened and extended from the present terminus of said Colfax street at the west line of Shaw’s Monroe street addition to Lawrence avenue, and believing and acknowledging that our respective properties would be specially benefited thereby, respectfully petition your honorable body to cause the same to be so opened and extended, and that you pass the necessary legislation and cause proper appropriation proceedings to be had therefor, and we further request that a special assessment be made to pay the cost and expense thereof, upon the property abutting upon said Colfax street and Colfax street extended, between Shaw avenue and Lawrence avenue, and consent and request that our respective properties may be so assessed.'
“ Respectfully submitted. ”

This is signed by twenty petitioners. Appended is a notation that there are twenty-nine land owners upon the street, and that there is a majority of five signing the petition. It is admitted that seven of the plaintiffs — Dale, Wilkinson, Miller, Hough, Van Hellen, Ott, and Yearick —signed this petition, and it is also shown that the grantor of Emma C. Caldwell, who owned the property at the time this improvement was made, signed the petition. With respect to the other plaintiffs — Kate Hendrickson, Ada S. Long and Michael Murphy — there is no evidence tending to show that' they or their grantors signed the petition; and it is conceded that the evidence shows that they did not.

The second sheet of this exhibit is a resolution in the ordinary form, declaring the intention of the city to open and extend Colfax street from Shaw avenue to Lawrence avenue, and that appears to have been adopted, according to the notation upon it, March 21, 1898. It is indorsed by a stamp by David McAllese, president of the board of councilmen, and J. Charles Meissner, president of the board of aldermen, and attested by Lem. P. Harris, city clerk. The backs of these two sheets contain various endorsements, to the effect that the resolution mentioned was adopted by the board of aldermen and the common council in 1898. There are also upon it notations indicating, as explained by the city clerk, who was a witness, that this paper had been referred to certain committees of the common council. The first sheet, viz., the petition, contains this endorsement:

“ I, William A. Mills, city solicitor of the city of Toledo, Ohio, hereby certify that I have examined the above and foregoing petition, and that I approve the same.
“ Wm. A. Miuus, City Solicitor.”

Originally that contained the additional words, ‘ ‘the 2d day of September, 1897,” but a pen was run through that part of it for some reason not explained.

■ The city clerk testifies that this paper, consisting of these various sheets, was found in the office of the city clerk, by him, in the usual and proper place for petitions and‘resolutions, and that both of the papers "have been duly recorded in the course of proceedings for the opening up ■of this street, in the respective volumes of records provided for the recording of such papers; that as a rule and custom of the office, and of the council, a petition like unto this, is first presented, and then a resolution is prepared, if upon examination it is found to have been certified thereon by the city solicitor that the petition is in due form and contains the necessary names; that when he found the paper these various sheets were fastened together in the form in which we now have them. There ,is no evidence submitted tending to show that the usual course to which he now testifies was not pursued in this case, There is no evidence tending to show that this petition was not a part of the papers fastened together as we now find them, at the time the resolution was adopted by council, and at the time the various proceedings were taken for the appropriation of this property and the opening up of this street. The presumption of the continuance of things as found alone would require us to hold, in the absence of any evidence to the contrary, that the original form of the paper was as we find it, all these sheets being fastened together and having this back on them.

, The petitioners admit that they signed this petition, and that it was signed by them sometime prior to this action by the council; they think .prior to the year that the council took action upon it. There is evidence that they also, signed another petition asking for substantially, if not exactly, the same thing; and another petition is presented here, and witnesses are questioned about it. That petition answers to the description given by the plaintiffs of that, which they signed, and which appears to have been signed, in the year 1892.

We think there is no evidence to impeach this document, and no evidence authorizing us to find that the petition was not originally a part of the document. We therefore do find that the petition was a part of the document, and was attached to the resolution, and that it was upon the faith and authority of this petition that the council proceeded ,to make this improvement.

As to the question whether there was irregularity in the action in the probate court, the confessing of judgment for $1,500, instead of impaneling a jury, and submitting evidence, and requiring a verdict of the jury awarding, the amount. It is not averred that there was any fraud, or collusion, or unfairness in this transaction; it is not averred that the amount for which there was a confession of judgment, or which it was agreed should constitute the amount of the award, was excessive in any degree; or that these plaintiffs were in the slightest degree prejudiced in any way by this action.

It seems to us that the city acted substantially in the capacity of a trustee for the petitioners in acquiring the property necessary for the improvement that they petitioned for. They had agreed that the expense should be assessed upon their property, and therefore it devolved upon the city to exercise good faith to undertake to preserve and to protect the rights of the petitioners, but in the absence of any averment- of any wrong or any prejudice, we do not think that there was such an irregularity in these proceedings as would invalidate them. For my own part, I am not able to say (supposing it to have been fairly and honestly done), there was any irregularity about it. I do not understand why the city and the owners of the property cannot agree upon the amount. It seems to be that the statute (See Secs. 1692 and 2232, Rev. Stat. et seq.') authorize the city to acquire property for such purposes by purchase or agreement as well as by condemnation proceedings, and that if they can obtain it at a fair price by an agreement or com-, promise, they may do so; and when the petitioners ask that the council shall proceed to pass the necessary legislation to cause proper appropriation proceedings to be had to acquire the property, the fair construction of that is, if the city is not able to obtain it at a fair and reasonable price without condemnation, then the city is authorized to proceed by appropriation proceedings to acquire the property. At all events, we agree that there was no irregularity in this that would invalidate the award. The city was contented with it, the owner of the property was contented; the city is not questioning it, the owner of the property raises no question about it. The city paid the award, the owner of the property accepted the award, and the city took possession of the premises and has since held them. And we do not think, even if this were an irregularity, that it now lies in the mouths of the plaintiffs to complain, unless their complaint is based upon an averment or charge of fraud or prejudice of some sort.

The petition avers that the plaintiffs were not benefited by this improvement. No witnesses were called upon that subject. If it devolved upon the city to show benefit as the pleadings stood (which we very much doubt), we think that situation is changed when this petition is produced, with the petitioners setting forth in their petition that they believe and acknowledge that their respective properties would be especiallj' benefited'by the improvement, and that they direct and consent that their respective properties may therefore be assessed- for the improvement. Though perhaps not absolutely estopped thereby from saying that they derive no benefit, they should at least furnish evidence': sufficient to sustain the burden of proof thereby cast upon them, to show hat they did not derive a benefit from the improvement.

That brings us to the principal question in the case, which is whether the plaintiffs who petitioned for this improvement or whose grantors petitioned for the improvement, are bound to pay the assessment because of their having petitioned.

I pass over without discussion the question whether this expense may be assessed upon abutting property owners under ordinary circumstances, where no question of estoppel arises, because we understand that has been decided in favor of the contention of the petitioners, in the case of to which I have referred, i. e., Cincinnati, L. & N. R. R. Co. v. Cincinnati, supra, which we followed in McGlynn v. Toledo, 12 Circ. Dec. 15 (22 R. 34). In the McGlynn case it was contended that the petitioners were estopped, because they had petitioned for the improvement which in that case consisted of the grading and paving of a street. The expenses assessed upon the property of which the property owners in that case complained were awards of damages on account of a change of grade of the street, and we held that they were not estopped, because the evidence did not show us that the property owners were so far aware of the fact that the city was proceeding upon the faith of the former decisions of the Supreme Court with respect to the law as to be estopped from asserting an objection to the assessment. The decision turned rather upon a question of the construction of their petition, which did not set forth specifically and distinctly that they agreed to be assessed expenses of this particular nature, and we held that therefore they should be deemed to have petitioned for and consented to such assessment only as would be legal and valid; that it should be assumed that what the parties asked for at the hands of the council was, that it should proceed under valid laws, and according to law, to make the improvement and the assessment. But in the case at bar we find no opportunity for putting a construction upon this petition which would sustain it as consenting to a part of the costs and expenses to be involved in the improvement, and which would not sustain it as to the remainder; for the whole improvement consists in the extension of the street, and the whole cost and expense incident to it is that arising from the acquisition of the property necessary for the extension. So that it appears very clearly and distinctly, that the petitioners applying to the council to make this improvement, consented and agreed that the cost and expense should be assessed upon their property. Are they, under such circumstances, bound by their agreement or by estoppel? We think they are. We think they are bound, applying the principles laid down by our Supreme Court in State v. Mitchell, 31 Ohio St. 592, and in Columbus v. Sohl, 44 Ohio St. 479 (8 N. E. Rep. 299]. I read a paragraph from the case last cited, page 482. The law in that case under which the improvement, consisting of the paving of a street, was made, was held by the Supreme Court to be unconstitutional and void, and yet the assessments made under and in pursuance of that law were sustained and enforced, and they were enforced because, as stated in State v. Mitchell, supra, the parties by their ac.tion in invoking the aid and assistance of the council under the law were estopped, and because, as stated in Columbus v. Sohl, supra, they were bound by their agreement. The paragraph to which I refer is as follows :

“ The law was invalid, and no authority was derived from it, for the making of the improvement, beyond the extent to which it had been adopted by all concerned as a scheme for improving North High street. Its provisions simply furnished the terms of an agreement among the concurring property holders, and the basis of a commission from them to the agencies of the city for the improvement of the street; and the rights and liabilities of all parties, including the city, are to be determined by the law of contract and agency, and not by any statutory powers that may have been intended to be conferred by the legislature; for the act being invalid could confer none.

Sohl, the defendant in that case, was held because he had petitioned for the improvement.

In State v. Mitchell, supra, it was said that parties who had participated in the business leading up to making the impro ement would be bound, but just how far they would be required to participate in order to be bound was not very clearly indicated, the court suggesting that that question could be presented if the parties sought to resist the collection of the assessment. But in the Sohl case it was held that it was a sufficient participation to petition for the improvement. In the Mitchell case it was held that not only the commissioners who acted under that law, but also those who petitioned for the improvement, were bound.

It would be manifestly unfair and unjust to the city for parties to petition for an improvement, and agree to pay the costs thereof, and afterwards, upon some technicality, saddle the expense upon the taxpayers of the city generally. Circumstances often arise in which a city may be willing to lend its aid by legislation and such machinery as is provided by law to parties to make an improvement, if the parties are willing to pay for it, where the city would not agree to do so unless the parties would agree to pay for it. The statutes upon the subject of assessments, Chap. 4, Tit. 12, Div. 7, provide that improvements of this kind may be paid for by the city out of the general funds. I read from Sec. 2263, Rev. Stat.:

“ When the corporation appropriates, or otherwise acquires, lots or lands for the purpose of laying off, opening, extending, straightening, pr widening a street, alley, or other public highway, or is possessed of property which it desires to improve for street purposes, the council may assess the cost and expenses of such appropriation or acquisition, and of the improvement, or of either, or of any part of either, upon the general tax list; in which case the same shall be assessed upon all the. taxable real and personal property in the corporation. ”

But Sec. 2267, Rev. Stat., provides that the council may decline to do that, and may require a petition setting forth that all cost or some share of the cost shall be assessed upon the property of the petitioners; and where such petition is filed, the .council shall proceed accordingly to assess all, or such part of the costs as the petitioners consent to, upon the property specially benefited; and under .this plan what is said by Judge Burkett in Cincinnati, L. & N. Railroad v. Cincinnati, supra, reading from pages 484, 485, is quite pertinent:

“Sometimes a municipality desires to open a new street, or straighten or widen an old one, in the line of general improvements, and for the general benefit and appearance of the municipality, and not for the special benefit of the lots and lands in a particular district. In such cases the compensation, costs and expenses for lands taken should be paid by the municipality out of its general revenue fund raised for such purposes.
“Sometimes the people in the vicinity desire to have a new street opened, or an old one straightened or widened, as a special' benefit to their lots and lands, and when the same .would not be sufficient benefit to the municipality to warrant the payment of the compensation, costs and expenses out of the treasury. In such cases the municipality may refuse to act in the matter until the parties to be specially benefited supply the funds to pay the compensation, costs and expenses, or such portion thereof as the municipality regards fair and just, the same as is now authorized by Sec. 4651 as to public roads. By acting upon this principle the burden can be placed where it belongs without forcing people to contribute by assessments where they are not benefited, and where they are .opposed to the opening, straightening, or widening of the street; and more than all else, their constitutional rights will be protected. If the present statutes are not broad enough, they can be amended.”

In our judgment, in such a case as this, where the improvement is petitioned for, and where it is such an improvement as the council may legislate for and have made, and where the only question of legality is that touching the right to assess the costs back upon the property, and the parties expressly agree that it shall be so assessed, this statute is quite sufficient, in connection with the agreement, to make an assessment valid; and whether they are bound by contract or estoppel, or both, is perhaps immaterial. To us it seems that they are estopped by the contract or agreement, even though it may turn out to be an invalid agreement because the city was not authorized to enter into such an agreement. I may add that it seems to us that it is not necessary for the city to invoke the rule laid down in Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194],

For the reasons stated we hold that as to the plaintiffs, Dale, Wilkinson, Miller, Hough, Van Hellen, Ott, Yearick and Caldwell, the petition should be dismissed at their costs, and that there should be a decree as prayed for in favor of Kate Hendrickson, Ada S. Fong and Michael Murphy. There being a decree in favor of three of the plaintiffs and against eight, the costs will be apportioned accordingly; eight elevenths of the costs will be adjudged against the petitioners as to whom the petition is dismissed, and three-elevenths will be adjudged against the city.  