
    (Montgomery County, O., Common Pleas
    May 8, 1897.)
    ROBERT M. NEVIN et al. v. THE CITY OF DAYTON.
    
      Estoppel—
    
    Where one petitions the proper authorities for a street improvement, and agrees in the petition to pay the whole cost and expense of the same, and the city in good faith goes forward and makes the improvement in pursuance to the provisions of the petition, and issues bonds for the payment of the same — Held? that the petitioner and all those who claim under him, are estopped from denying the legality of the assessment.
   KUMLER, J.

This is an action brought by Robert M. and William B. Nevin against the City of Dayton, for the purpose of enjoining th city from collecting a special assessment for the improvement of Madison street in the city of Dayton, by paving same with asphalt.

The petition avers that plaintiffs are the owners of lot No. 709,on the corner of Third and Madison streets; that both Third and Madison streets have been paved within three years prior to the bringing of this suit; that the total amount of the assessment for both streets is 81,935; that the property is on the tax duplicate for 84,500; that under the twenty-five per cent, limitation they can only be assessed for the sum of 81,125. That is, they aver that the assessment is excessive in the sum of 8810, and pray the court to enjoin the city from collecting the excess.

The City of Dayton files an answer in which it admits that the total assessment upon this lot, including the interest on bonds, amounts to 81,935. It avers that prior to September 5th, 1893, Third street was improved ; that on the 5th day of September, 1893, Susan M. Sanders, who then had the legal title to said real estate, conveyed the same to Ambrose A. Winters in fee simple; that on May 8th, 1894 Winters conveyed the undivided one-third interest in said lot to Frances IS. Nevin, and on May 10th, 1894, he conveyed the undivided one-third interest in said lot to Robert Nevin, and that in the fall of 1895,Robert M. and William B. Nevin became the owners in fee simple of said lot. The answer further avers, that .prior to the 2nd day uf March, 1894, Winters presented his petition to the board of city affairs and the city council of Dayton, asking for the improvement of said street by paving same with asphalt; that his petition was filed with the board of city affairs and city clerk, and on the 2nd day of March, 1894, the board of city affairs passed an improvement resolution declaring the necessity of the improvement, and transmitted the same to the city council with its recommendation, and on the 17th day of April following, the city council adopted said resolution, and in June, 1894, the city council passed an ordinance for the improvement, and during the following summer the improvement was made and bonds were issued by the city to pay for the same, in pursuance to tho petition, resolution and ordinance. Defendant avers that Winters, by presenting his petition to the city, induced it to make the improvement,and that in good faith it relied on him to pay for the same, and therefore he and those who claim under him are estopped from questioning the validity of the assessment.

The petition which Winters presented to the city is as follows: #

“To the Board of City Affairs and the City Council of the City of Dayton :
“Gentlemen We the undersigned owners of property abutting on Madison street, from First street to Third street, hereby respectfully petition for the improvement of Madison street, from First street to Third street, by paving the roadway, setting curb and constructing the necessary culverts, drains, etc., and that assessments, to which we assent, to pay the whole cost and expense of such improvement, including the interest on bonds if issued, be made and levied per foot front upon all the lots and lands abutting on said street between said points, except the cost and expense of improving the intersections of public streets and alleys.”

(See, Table at bottom of page.)

No reply was filed to the answer, and the case came on for hearing to the court on the petition and answer. All the averments of the answer were admitted to be true by plaintiffs. Plaintiffs claim, however, that if all the facts set forth in the answer are true, yet under the law they are not liable for the excess of 8810. CO.

The first case in Ohio that has a direct bearing on the question of estoppel in matters of this kind is, Corry v. Gaynor, 22 Ohio St. 584.

In this case, two-thirds of the resident property owners -did not sign the petition for the improvement.as required by the statute under which the improvement was made, but the city went forward in good faith believing the proper number of petitioners had signed the petition for the improvement, and let the contract to one Campbell, who afterwards assigned his interest in the contract and assessments to one Gaynor. Campbell, before proceeding with the work, heard that Corry was not going to pay his assessment; that Corry claimed tbat the preliminary proceedings were irregular, and thereupon Campbell went to see Corry and told him what he had heard,and said to him that if there was going to be any trouble he would throw up the contract. Thereupon Corry'replied, “Go on with the work, the street will be paid for.”

The court, in discussing the question say: “The petition of September 23rd, was subsequently presented, and the trustees believing it to be signed by two-thirds of the resident lot owners, adopted the necessary ordinance directing the improvement and providing for charging the cost upoD the abutting lots. Advertisement was made for proposals fordoing the work and Campbell’s bid was accepted. * * *. Corry’s declaration, ‘Go on with the work; the street will be paid for,’ was evidently made to induce Campbell to go on with the work, and as the court below found, it had that effect. Campbell was authorized to understand it

as an unconditional assurance, that, so far at least as plaintiff was concerned, payment would be made when the work was done-made in the way contemplated, and made without trouble. So understood, it necessarily involved a waiver of any defect there might be in the . preliminary proceedings. Upon this assurance, Campbell did go on. He closed his contract with the trustees, agreed to look to the assessments for his pay, and proceeded with the work.”

Again the court say : “It does not neces sarily follow that the plaintiff below was not entitled to recover. It wi.s competent for the lot owners, or any of them, to waive the defect referred to. In civil proceedings, the protection of any statutory or even contitutional provision, may be waived, and a arty may be estopped by his acts from enying the legality of proceedings which urport to charge him or his property. ”

So it will be seen that our Supreme Court has held that a party will be estopped from questioning the validity of an assessment by simply saying to a contractor who takes the assessment in paying for his work, “Go on with the work ; that street will be paid for,” although the requisite two-thirds did not sign the petition for the improvement as required by law.

Wo next come to the case of The State ex rel. v. Mitchell, 31 Ohio St. 592. In this case the court held the áct of March 30th, 1875, unconstitutional, being special, and conferring corporate powers; but it further held that notwithstanding the unconstitutionality of the act, where the abutting lot owners have caused the street to be improved under the act, and bonds of the city to be issued and negotiated to pay for the improvement, all who have participated in causing the improvement to be made are estopped from denying the validity of the assessment made in accordance with the act to pay such bonds. The court, after discussing the question very fully, say, (page 690.1

“The remaining question is, whether the unconstitutionality of the act constitutes an answer to the alternative writ. Under the cicrumstances of the case we think it does not. The making of the improvement originated with the owners of the abutting prop erty, and was carried forward to completion under their authority. * * *.

“We deem it unnecessary to undertake to recite all the steps that have been taken in making the improvement. It is sufficient to say that the defendants and the other abutt ing lot owners who have co operated with them, have caused the improvement to be completed. In doing the work a large indebtedness has ben incurred, for which the bonds of the city have been issued and negotiated in accordance with the provisions of the act. All this has been done with full knowledge that the only provision made for paying such indebtedness was by assessment on the abutting property.

“Under these circumstances, we are of the opinion that the defendants and those who have participated with them in causing the improvement to be made are estopped from denying the validity of the assessment. Having voluntarily availed themselves of the provisions of the act, to create an indebtedness for the benefit of their property, good faith requires that they should be thus estopped. * * *.

“Hence, notwithstanding the unconstitutionality of the act, the rights of third par ties have so intervened that it is the duty of the commissioners to complete the apportionment of the assessment in accordance with the terms of the act.”

In Columbus v. Sohl, 44 Ohio St. 479, we find a case where defendant in error sought to have an assessment declared invalid on the ground that some of the names, repre senting owners whose frontage was necessary to constitute the necessary two-thirds of the frontage on the street required by the act, were signed to the petition not by themselves, but by persons assuming to act for them, and because the agent signed his own name for that of the principal.

The court say : “Upon the issues as made, the principal question was as to whether two-thirds of the owners of the frontage upon the street had petitioned the council of the city for the benefits of the act before the passage of the ordinance ordering the improvement to be made,and the issuing of the bonds of the city in payment of the same; and this turned upon the further question as to whether an agent could act for an owner in petitioning for the improvement, and if so, whether in such case the petition could be signed by the agent without indicating his agency on the petition ; and also whether a subsequent ratification by an owner should be held as equivalent to a previous authority, when done before the improvement was ordered and the issuing of the bonds of the city. *

“We think the judgment of the Circuit Court in this case should be reversed and judgment rendered in favor of the city. The defendant, in error, Sobl, petitioned for the benefits of the act. making the improvement under its provisions, and thereby, with the others acting with him, induced the city to negotiate its bonds to pay for the improvement. * * *.

“But it is claimed that two-thirds of the ownership of the frontage upon the street had not been obtained prior of the passage of the passage of the ordinance authorizing the improvement to be made, and that, therefore, the defendant is not liable. * * *.

“It was found that in a number of cases the petition had been signed, not by the owner, but by some one for him as agent, and in some cases the name of the agent only was signed to the petition. But in all these cases where the master found the owner to have been a petitioner, he also found, as a fact, either that the agent was authorized to act for the owner as principal, or that the owner subsequently ratified the act before the improvement was ordered and the city negotiated the bonds. We see no good reason why, in this case,an owner may not have acted by his agent as well as by himself. It was not a question of jurisdiction. 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 the statutory powers that may have been intended to be conferred by the legislature; for the act being invalid could confer none. So that it is not material in this view of the case whether two-thirds of the frontage had been obtained before or after the passage of the ordinance, so that it was obtained without fraud or imposition upon the property owners before the work was directed to be done for which the city issued its bonds.

I next call attention to the case of The City of Columbus v. Slyh, 44 Ohio St. 484. In this case the grantor of the defendant in error did not even petition for the improvement, but it appeared on tbe hearing of the case that he voted for the -improvement commissioners provided for by the act, and the court held that as grantor of defendant in error was found to have participated in the election of the commissioners, whose election was necessary under the act in order to make the scheme successful, he and they who claim under him are estopped from attacking the validity of tbe assessment.

The court say : “ We perceive no essential difference between petitioning for an im provement and participating in the election of commissioners to carry the plans into execution. If the commiss’onershad not been selected the scheme would have failed, so that those who participated in the election of commissioners peimitted the improvement under the law as much as those who petitioned for it in the first instance,” Thus it will be seen that our Supreme Court has gone so far as to hold that the mere voting for improvement commissioners provided for by the improvement act. is a part of the scheme and works an estoppel, and this decision seems to be perfectly consistent with the general principles under-lyiDg the doctrine of estoppel.

Tbe latest case in Ohio bearing on the claim of defendant is: Cincinnati v. Manss, 54 Ohio St. 2o7. (Decided March 17, 1896.) Manss was one of the property owners who petitioned the proper board for the improvement of Carson avenue in Cincinnati. The property of Manss abutted lengthwise, 417 feet on the avenue, and fronted 243% feel) on another avenue. In his petition he represented 417 feet to be the length of his property abutting on the improvement. After the work was completed and the assessment made on the 417 feet, he brought suit,claiming that he could only be assessed on the number of feet (243%) representing the real front of the lot. The court held, that inasmuch as Manss represented in his petition that he owned property on the improvement assessable to the amount of 417 feet, he is estopped from claiming under the statute, and must be assessed for the number of feet represented, notwithstanding the rule heretofore adopted as to corner lots.

The court say on page263: “If the number of feet the petitioner represents himself as having on the improvement, is not the number on which he is to be assessed, in case the improvement is ordered, then there is no mode by which it can be determined from the petition whether the requisite number have asked for ihe improvement. It is certainly not the business of the councilor the board of improvement, to ascertain for themselves aliunde the petition whether a petitioner has the number of feet subject to assessment, represen ted by him in the petition. What he represents in the petition must,as against him, be taken as true. He is estopped to say otherwise. For it must be remembered that the very purpose of stating in the petition the number of feet each petitioner has, is to enable the council to determine whether the petitioners, in the aggregate, represent three-fourths in interest of the property owners to be assessed for the improvement. And every one who signs a petition of this kind must be held to know the purpose and effect of it.”

Counsel for plaintiffs rely upon two cases to support their theory of the case : Baker v. Schott, 10 C. C. 81; Edwards v. City of Columbus, 26 Law Bulleti. 263, (Common Pleas.)

These in their order:

The form of the petition in the Baker case, praying for the improvement of Carter street in the village of Norwich, reads as follows: ‘‘By grading the same, macadamizing the road-bed, paving gutters, laying crossings, and constructing necessary culverts and drains, and that an assessment, (to which we hereby specially assent ) to pay the costs and expenses of such improvement be made according to the law of assessments, levied per front foot upon all of the lots and'lands so abutting on said improvement. ”

A comparison of the petition for the improvement in the case of Baker v. Schott, supra, with the petition of. Winters in this case, discloses the fact that they are manifestly different. In the Baker case the petitioner was careful enough to so frame his petition as not to waive any of his rights under the statute providing how ssessments shall be made in cases of this kind, as construed by our Supreme Court in Haviland v. Columbus, 50 Ohio St. 471; Toledo v. Sheill, 53 Ohio St. 447; Baker, in his petition, prayed that the assessment be made according to the law of assessments. He simply asked the village of Norwich to do that which it was bound to do under the law, and thereby reserved all of his rights under the statute. In the case under consideration we find a petition of an entirely different character. Winters, in his petition to the city of Dayton, proposed to pay his proportion of the whole cost and expense of the improvement of Madison sltreet, and that an assessment might be levied on his said lot (709) abutting on Madison street for 156?,| feet, the entire length of said lot. In the one case the petitioner expressly reserved all of his rights under the statute so far as paying for the improvement was concerned ; and iu the other, the petitioner expressly waived all of his.

R. M. Nevin and W. B. Nevin, for plaintiffs.

E. P. Matthews, City Solicitor, for defendant.

Now, as ot Edwards v. Columbus, supra. In this case the plaintiff petitioned for the improvement of the street on the side of his property, and represented that he owned frontage to the extent of 150 feet, the real front being of a much less number of feet. The court held that inasmuch as in Columbus the city could make the improvement without a petition from the property owners, the doctrine of estoppel did not apply, and that the case of Cincinnati v. Manss, supra, had ño application. Neither is it necessary in Dayton for the property owners to petition for an improvement of this character. But suppose, as in this case, the property owner did petition, ana agree to pay all the cost and expense of the improvement, and the city being induced thereby goes forward in good faith, makes the improvement and issues its bonds for the payment of the same, would not then the doctrne of estoppel apply? We sav yes.

Again, the facts in the Edwards case are ■essentially different from the facts in this, and hence that case has no application to the one under consideration, If the city of Columbus was induced to make the improvement by the petition of Edwards and others, and acted upon same in good faith, we say he was estopped, notwithstanding the peti tioú was not necessary ; and if he represented that he had a certain number of assessable feet, he was bound by his representations. To hold otherwise would be in direct conflict with Cininnati v. Manss, supra. Where the court say, (page 263,) “What he represents in the petition, must, as against him, be taken as true. He is estopped to say otherwise. ”

Again, the case under consideration is founded on the 25 per cent, limitation, while the Edwards case was based on the rule adopted as to corner lots.

This court does not undertake to hold that if a person merely files a petition for an improvement, that, of itself, works an estoppel. In such case the petition^- will only be es-topped from denying the power of the city to grant his petition. See Tone v. Columbus, 39 Ohio St. 281.

In the case at bar we have a written proposition from Winters requesting the city authorities to make the improvement, and in his proposal he agrees to pay the whole cost and expense of the same. The city relying upon his proposal being made in good faith, accepts it, goes forward and completes the improvement and issues its bond for the payment of the sanje. We say that the written proposal of Winters, the acceptance of the same, and the subsequent performance of the work in compliance with the provisions of the proposal, on behalf of the city, constituted a valid contract between the parties, subject to all 'the rules governing the enforcement of contracts. See Street R. R. Co. v. Village of Carthage, 36 Ohio St. 631.

We therefore hold that if Winters were a party to this suit, he would, by his conduct, be estoped from denying the legality of the assessment upon every principle of equity and natural justice, and that his grantees, and those who claim under and through him, stand in his shoes,and are also estopped. See Columbus v. Slyh, 44 Ohio St. 485.

The discussion of this question has taken wider range than necessary or intended, and the only apology we have to offer is that there are scores of other cases, heard and pending in this court, involving the same question, and other questions covered by this opinion, and that the decision in this case is a finality as to all others, so far as this court is concerned.

The temporary restraining order will be dissolved, and petition dismissed at plaintiff’s costs.  