
    Ford et al. v. The City of Toledo et al.
    
      Assessments — Exemptions of property from assessments for sewers as provided in section 2SSO, Rev. Stat. — Applicable, where — “Local Drainage” defined ■— When sufficient to entitle land to exemption — Vacant lots receiving benefit from adjacent sewer subject to assessment, -when.
    
    1. Section 2380, of the Revised Statutes, and the exemptions of property from assessments for sewers as therein provided, are applicable where the assessment is levied for the construction of a main sewer in a city of the third grade of the first class.
    2. The “local drainage” contemplated by that provision, is that which provides the lot or land with adequate drainage for the necessary and usual purposes of sewerage; and it is not enough, to entitle a lot or land to exemption from assessment, that it is provided with sufficient surface drainage, or does not need drainage of that kind.
    3. Where the lot or land is in need of local drainage, it is not exempt because it is entirely unimproved, and there is no immediate need for such drainage. Vacant lots and lands may, and usually do receive a present special appreciable benefit from the construction of a sewer in proximity with, and accessible by them for sewerage purposes, sufficient to sustain an assessment made on the basis of benefits.
    (Decided January 22, 1901.)
    Error to the Circuit Court of Lucas county.
    The action below was brojight by the city of Toledo for the use of P. A. MacGahan, against Samuel A. Ford and others, to recover the amount of assessments levied on'their lands for the construction of a main seAver in sewer district No. 26 in the city of Toledo. The averments of the petition showed that, the proceeding’s for the establishment of the district, the location and construction of the sewer, and levying the assessments, were regular and in conformity with the statute. The mode adopted for making the assessment was according to benefits to the property in the district, and the amount levied on the property of the defendants was apportioned by the committee on that basis. The defendants admitted by answer the regularity of the proceedings, but contested the plaintiff’s ciaim on the ground that their lands were already provided with sufficient local drainage, and needed none that would be supplied by the sewer; and that their lands were not in anyway benefited by the construction of the sewer. The common pleas court found for the defendants, and the cause was appealed from its judgment to the circuit court, which, upon final hearing, made a finding of facts as follows:
    ’ “1. That the city of Toledo is a municipal corporation duly organized and existing under the laws of Ohio as a city of the first class, third grade.
    2. That the common council of the city of Toledo passed the necessary legislation providing for the construction of a main sewer in sewer district number twenty-six of the city of Toledo.
    3. That said legislation so passed provided that the cost and expense of said main sewer, except that part in the street and alley intersections, should be levied and assessed upon the lots and lands bounding, fronting or abutting thereon, or benefited thereby in proportion to benefits the same might receive for local drainage, and the remainder of the cost and expense of constructing said sewer should be levied upon all the real property in main sewer district number twenty-six according to benefits.
    4. That a.11 right and interest in said assessment were for a valuable consideration sold and transferred to P. A. MacGahan and that he is the owner thereof.
    
      5. That the real estate described in the petition consists of river bottom and highland. That the river bottom is traversed by Ottawa river and said lowland is thirty feet below the highland.
    6. That said sewer is fifty-four inches inside diameter, and six hundred feet thereof is constructed across said low land so that forty-five inches of the inside diameter is above the level of said lowland.
    7. That said real estate has been for more than thirty years last past and the greater part thereof was at the date of the construction of said sewer used exclusively for agricultural and pasturing purposes, and that there are no dwellings or other buildnigs located thereon, but a part thereof was and is platted as city lots.
    8. That the highland is traversed by a natural ravine emptying into Ottawa river.
    9. That all of said upland was so situated topographically at the time of the passage of the legislation for said sewer and at the time of the construction thereof, as to have, and it did have, sufficient natural drainage, and the natural or surface drainage of the lowland was not improved thereby.
    10. That said real estate derived no benefit by reason of the construction of said sewer other than that resulting to property generally in said sewer district, from having the sewerage carried away to said river outlet, and the special local benefit that will result thereto whenever said lots or lands shall be built upon. Surface water from said lowlands can not be drained into said sewer as now situated.
    11. That said sewer is not designated for local drainage to the said real estate or any part thereof, and lateral local sewers leading thereto must be constructed to make it available for surface drainage or local sewage for any of said lots or lands, but it was designated and built and may be used as a main sewer to carry surface water ¡and house drainage and sewage of all kinds from said sewer district to said outlet ; and much of said district is built upon and needs such outlet for its sewage.
    12. That said upland at the date of the passage of the legislation providing for the construction of, and at the date of the construction of said sewer, did not need local drainage to carry the surface water away, and had no immediate need of house drainage or other local drainage to dispose of any sewage originating on said lots or land. The same was and is true of the lowland excepting the fact that it needs local surface drainage, but the same is not afforded or improved by said sewer.”
    And on the facts so found the court held the assessments were valid, for the full amount, with interest and penalty; and gave judgment accordingly. Error is prosecuted here to reverse the judgment of the circuit court.
    
      G. F. Watts and H. A. Merrill, for plaintiffs in error,
    cite the following authorities:
    
      Wewell v. Cincinnati, 45 Ohio St., 407; Toledo v. Railway Co., 2 Circ. Dec., 450, 4 C. C., 113; Cincinnati v. Hess, 10 Circ. Dec., 479, 9 C. C., 251 (affirmed 61 Ohio St., 638); Hermann v. State, 54 Ohio St., 506; Stewart v. Palmer, 74 N. Y., 189; Chamberlain v. Cleveland, 34 Ohio St., 551; Blue v. Wentz, 54 Ohio St., 247; Cincinnati v. Batsche, 52 Ohio St., 324; Schroder v. Overman, 61 Ohio St., 1; Norwood v. Baker, 172 U. S., 269; Walsh v. Barron, 61 Ohio St., 15.
    
      
      P. A. MacGahcm and Charles 8. Northup, for defendants in error,
    cite the following authorities:
    
      Toledo v. Ford, 11 Circ. Dec., 115, 20 C. C., 294; Chamberlain v. Cleveland, 34 Ohio St., 552; Cincinnati v. Hess, 10 Circ. Dec., 479, 19 C. C., 252 (affirmed 61 Ohio St., 638); Wewell v. Cincinnati, 45 Ohio St., 407.
   Williams, J.

The assessments are claimed to be invalid, because they are forbidden by section 2380, of the'Revised Statutes, Avhich provides that: “The assessment shall not exceed the sum that would, in the opinion of the council, be required to construct an ordinary street sewer, or drain, of sufficient capacity to drain or seAver such lots or lands; nor shall any lots or lands be assessed that do not need local drain.age, or which are then provided thereAvith; and the excess of the costs over the assessment herein authorized, shall be paid out of the sewer fund of the corporation; or in cities of the third grade of the first class, if the council so determine, may be assessed, in addition to pther taxes now authorized by laAV, on all the real property in the sewer district in which said sewer is or may be constructed according to benefits, * * * .” It is the contention of the plaintiffs, that the facts found show that their lands were already provided with all necessary drainage when the sewer Avas constructed, and therefore did not need that which the sewer was designed to supply; and that, the sewer furnished no drainage in addition to that with which the lands were already provided, and consequently they were in no way benefited thereby. That the section referred to is applicable to main sewers, is apparent from the context. The preceding section, (2379) requires that, “the council shall provide for assessing the costs and expenses of constructing main sewers, upon the lots and lands bounding or abutting upon the streets, lands, alleys, highways, market spaces, public landings, and commons, in or along which the same shall pass, by the feet front, or according to the valuation of the same on the tax list, or according to benefits, as it shall determine.” The limitations' on the assessments authorized by that section, are prescribed in section 2380. Provision is then made for assessments for local sewerage by section 2381.

Nor do any of the subsequent provisions of section 2380 remove, or affect, the exemptions authorized by that section, nor prescribe any different rule, or mode, or power of assessment for a main sewer in cities of the third grade of the first class, except in regard to the excess over the assessment authorized by the preceding clause of the section. In such cities, the council is authorized to levy such excess on all the real property of the sewer district according to benefits; but that is the extent to which power is given such city different from that which governs other municipalities in levying assessments for main sewers; We do not concur in that part of the opinion of the circuit court which seems to hold differently.

Only those lots and lands, however, embraced within the bounds which may be assessed for a main sewer, are exempt from such assessment under section 2380, that, in the language of the section, “do not need local drainage, or which are then provided therewith.” When it is determined what constitutes local drainage, within the meaning of the statute, it becomes, in each case, a qxiestion of fact whether the lots or lands involved need, or are provided with, drainage of that kind. It was held in Wewell v. Cincinnati, 45 Ohio St., 407, that, in order to give application to the exemption of the statute, it was not necessary the local drainage should be provided by municipal authority. If for any reason it exists, and is adequate, the statute applies. In that case a large sewer emptying into the river, ample for all local sewage of lands entitled to connect with it, had been constructed without municipal action, and that whs held sufficient to exempt the lands so entitled to connect, from assessments for another sewer constructed by the city. The question here, however, is somewhat different. It is whether present sufficient surface drainage constitutes local drainage within the purview of the statute; or must it be such as provides the land with adequate drainage for the necessary and usual purposes of sewerage? We think it must be of the latter character to work an exemption of the land from assessment. There is no direct finding that the lands of the plaintiffs in error were provided with drainage of that kind, nor that they did not need such drainage. Certain probative facts are found which tend to establish the ultimate fact, but in our opinion they fall short of that result. As we interpret them they show that the lands were supplied with sufficient natural or surface drainage and did not need immediate house or local drainage to dispose of sewage originating on the lands, but that they would be benefited as other lands in the sewer district by having the sewage carried away, in addition to the local benefit when the lands are built upon. To authorize an assessment for sewer purposes, it is not necessary that the property should have immediate need for the use of the sewer. If so, vacant lots on improved streets, adjacent to buildings would be exempt. And, the length of time the ground may probably remain vacant, only goes to the urgency of the need and the measure of the benefit. But, that vacant ground may and generally does receive a present special appreciable benefit from the construction of a sewer, on account of its proximity and accessibility cor all sewerage purposes, is known to everyone conversant with the subject. The drainage of sewage into an open ravine in a city would be inimical to the public health, and can hardly be considered such local drainage as the statute contemplates. On account of the situation and condition of the lands of the plaintiffs in error this seems like an extreme case for assessment; but it purports to have been levied according to local and special benefits, and the presumption is that the committee acted upon sufficient information, and according to law. The burden is upon the plaintiffs in error to show that their lands did not need local drainage, or were provided therewith, to entitle them to claim exemption from the assessment. The findings of the circuit court do not so show, in our opinion. The judgment of a lower court should not be reversed, unless the error is manifest, and it is entitled to that construction of its record which is most favorable to the judgment.

Judgment affirmed.

Shauck, C. J., Burket and Spear, JJ., concur.

Minshall and Davis, JJ., dissent.  