
    ASSESSMENTS.
    [Lucas (6th) Circuit Court,
    March 21, 1908.]
    Parker, Wildman and Kinkade, JJ.
    William H. Prentice et al. v. Toledo (City).
    1. Burden or Proof on One Attacking Assessment.
    Street paving assessments will not be enjoined as excessive and inequitable unless so established by a preponderance of proof.
    2. Uses oe Property to be Consideeed in Making Assessments.
    The potential as well as the present use of property is to be taken into account in making assessments' for public improvements.
    3. Conflict of Evidence as to Values of Property Impeoved.
    An assessment for a street improvement of $943.59 upon property estimated after the improvement by complaining owner’s witness at $2,800, being but slightly above the 33% per cent thereof, will not be interfered with as being in contravention of Sec. 53 of the municipal code of 1902 (Rev. Stat. 2373; Lan. 3604; B. 1536-213), there being other evidence that the assessment is less than 33% per cent of the value of the property as enhanced by the improvement.
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    F. H. Geer, for plaintiffs:
    Cited and commented upon the following authorities: Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120]; Norwood y. Baker, 12 O. F. D. 228 [172 U. S. 269; 19 Sup. Ct. Rep. 187; 43 L. Ed. 443]; State v. Newark, 37 N. J. Law 415 [18 Am. Rep. 729] ; Hammett v. Philadelphia, 65 Pa. St. 146 [3 Am. Rep. 615]; Tide-Water Go. v. Coster, 18 N. J. Eq. 518 [90 Am. Dee. 634]; Dillon, Mun. Corp. Sec. 761; Griswold v. Pelton, 34 Ohio St. 482; Chamberlain v. Cleveland, 34 Ohio St. 551; Schroder v. Overman, 61 Ohio St. 1 [55 N. E. Rep. 158; 47 L. R. A. 156]; Walsh V. Barron, 61 Ohio St. 15 [55 N. E. Rep. 164; 76 Am. St. Rep. 354]; 
      Cincinnati, L. & N. By. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229]; Davidson v. New Orleans, 96 U. S. 97 [24 L. Ed. 616]; Cincinnati, N. 0. & T. P. By. v. Kentucky, 115 U. S. 321 [6 Sup. Ct. Rep. 57; 29 L.. Ed. 414]; Daytonv. Bauman, 66 Ohio-St. 379 [64 N. E. Rep. 433]; Ayers-v. Toledo, 26 O. C. C. 766; Breuer v. Cincinnati, 52 Bull. 281; Cincinnati v. James, 55 Ohio St. 180 [44 N. E. Rep. 925]; Pike v. Cummings, 3d Ohio St. 213; Groesbeck v. Cincinnati, 51 Ohio St. 365 [37 N. E. Rep. 707]; Blair v. Cary, 24 O. C. C. 560; Birdseye v. Clyde, 61 Ohio St. 27 [55 N. E. Rep. 169]; Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428] ; Price v. Toledo, 25 O. O. C. 617; Cincinnati v. Shoemaker, 25 O. C. C. 256; Stafford v. Eamston, 2 Brod. & Bing. 691.
    C. S. Northup and O. W. Nelson, for defendants.
   WILDMAN, J.

This is a suit brought here by appeal to enjoin paving assessments on Central avenue, between Collingwood avenue and Cherry street. A number of plaintiffs, property owners, have united in bringing the suit, claiming that the assessments upon their several properties are excessive and inequitable, the assessments having been made according to benefits.

Of course' the burden rests upon the parties attacking the assessments made in behalf of the municipality; that burden must be sustained by a preponderance of the evidence; and, as previously held by this court and probably thoroughly established by other adjudications, it is not sufficient in order to justify the stopping of the collections that this court should conclude that if we were the assessing-tribunal we would have adopted somewhat different measures, or would have made lighter burdens upon the properties involved. We are not disposed to depart from the conclusions arrived at in the ease of Price v. Toledo, 25 O. C. C. 617, in which, on page 623, if my memory serves, me, Judge Hull used some quite strong language in defining the province of the court as to interference with the discretion of the assessing committee, holding, in substance, that in order to justify an interference by the courts, the assessments must be so grossly excessive as to indicate fraud. It may not be necessary to go to that length in the present case, and probably is not. It is sufficient to say that the plaintiffs have not maintained their claim by a preponderance of the evidence, which is required to justify the granting of an injunction, that the assessing body have so assessed the propérties as to abuse its discretion; and without some abuse of that discretion which is given by the law, we are not justified in interfering.

If we look at mere numbers of witnesses, which may be taken into .account in connection with the character of their testimony, and the other circumstances of the case, we find that a decided majority of persons qualified to speak, testified in behalf of the defendants, and in their estimates of the benefits to the properties involved, nearly, if not quite all of the' defendant’s witnesses testified that the benefits are •greater than as found by the assessing board. The witnesses called for the plaintiffs and also for the defendants are persons who have had more or less experience in buying and selling real estate; it has been their business for years. It is apparent that the notions of men who are frequently called upon to determine the market values of real ■ estate greatly vary among themselves. There is, to illustrate, in the ^present case, one property in which the estimates of benefit, by •reason of this pavement, are varied all the way fiqom $100 to $1,500; ,.and this by the testimony of men more or less qualified to speak, by reason of their experience as to the market values of properties. It is not surprising, when we see so wide a range of opinions in a matter ■which cannot be fixed with absolute- certainty by any mathematical process, that the board of public officers should arrive at estimates of value which might not entirely concur with those which the judges upon the bench might be disposed to adopt if the question came to them in the first instance.

Some criticism was made in cross-examination, or by way of suggestion to the court by counsel for the plaintiffs, of the evidence of several of the witnesses for the defense, upon the ground that they had not inspected the interiors of houses upon property assessed and so become thoroughly familiar with the values of properties immediately 'before and immediately after the paving improvement. We think, 'however, that too much emphasis has been placed by counsel for the plaintiff upon this feature- of the case. It is not of so much consequence what úse has been made of property by improvements that have been placed upon it, as the potential value of the lot as affected by •the improvement for which the assessment is made. In the case of McMaken v. Hayes, 29 O. C. C. 535, in the opinion it is said, page 540:

“We think that it may justly be said' that it is not altogether the present use that is made of the property but its potential use that fixes the market value of property and that such use is to be taken into account by the persons assessing the benefits.’’'

But even if the use that has already been made of the property and improvements that have been placed upon it are to receive consideration by the persons assessing the benefits in determining the extent to which the property is enhanced in value by the improvement, we do not think that the fact that some of the witnesses have not visited the interiors of the houses, should play any very large part in determining the extent to which the property has been enhanced in market value by the pavement.

¥e have had more trouble with the assessment upon a piece of property owned by the plaintiff, Prentice, having a frontage of 150 feet along the pavement, than with any of the other properties assessed and involved in this litigation. There is an assessment upon this property of $943.59, and I think I may say for the other members of the court, as I do for myself, that if we were making this assessment, it is altogether likely we should not have placed so heavy a burden upon this particular property. Among the numerous witnesses who have testified, however, there are three who have made the benefits to this property larger than the amount which has been imposed. Mr. Dale testified that it is benefited to the extent of $1,000; Mr. Jones concurs in this estimate, and the witness Emrich places the benefit as high as $1,500. It is claimed, however, with regard to this particular piece of property and it the only one in the case as to which this question has arisen, that the assessment upon it is more than 33 1-3 per cent of the value of <the property as improved by the pavement and that such an assessment is in contravention of the statute (Sec. 53 of the municipal code of 1902; Rev. Stat. 2373; Lan. 3604; B. 1536-213). But here again is a conflict in the evidence. Dale, Wilson, Emrich and Jones all estimate the value of the property as improved at more than three times- the amount of the assessment; while one of the defendant’s witnesses, Mr. Fuller, estimates the value of the property as improved at $2,800, one-third of which would be very slightly below the amount of the assessment which has been placed upon the property.

We are not disposed to say that there has been such an abuse of discretion in assessing this property as would justify the interference of the court. We have concluded to render the same judgment in regard to-it as to the rest. We refuse the injunction as to all of the assessments. The petition of the plaintiffs will be dismissed at their costs.

Parker and Kinkade, concur.  