
    Cincinnati v. Batsche et al.
    
      Street improvement — ■Condemnation of property — Special assessment by the foot front — Section 2264, Rev. Stat.
    
    Where a city appropriates land for the purpose of widening a part of a street, and provides by ordinance that the costs and expenses of the appropriation, shall be assessed by the foot front, upon the lots and lands abutting upon the part widened, and upon other lots and lands abutting upon the line of such street between certain designated points, such abutting lots and lands being declared by the council to be those which, in its opinion, will be specially benefited by the appropriation — Held:
    
      1. The assessment will be deemed to be on the foot front plan, as distinct from an assessment in proportion to the benefits that may result from the improvement, or according to the value of the property assessed, as provided by section 2264 of the Revised Statutes.
    2. The assessment will be held -valid and binding only as to such lots and lands as bound and abut on the improvement.
    3. The improvement, within the statutory meaning, has reference to the specific thing, of definite location, which is done or added to the street whereby it is improved. The term is not to be applied indiscriminately to any part of the street because it may have been improved, in the sense of having been benefited, by a change or addition made elsewhere on the street.
    4. Where a strip of ground from one side of a street is appropriated for the purpose of widening such street, the lots and lands fronting on the opposite side of the street at the part widened, will be held to abut on the improvement, although the street may intervene between the abutting lots and lands and the strip of ground appropriated.
    (Decided February 5, 1895.)
    Error to the Superior Court of Cincinnati in General Term.
    The original action was begun in the Superior Court of Cincinnati by Henry Batsche, one of the defendants in error, on behalf of himself and other persons named in his petition, to wit: Margaret Wilmer, The Walton Architectural Iron Company, The American Cotton Oil Company, Clifford Perm, Johanna Kirkpatrick, The Queen City Spring Company, Charles Harkness, F. A. Sudbeck heirs, and H. W. Schorfheide, to enjoin the collection of a special assessment levied by the city of Cincinnati, one of the plaintiffs in error, on their property abutting on Culvert street, between Fifth and Sixth streets, in said city, to pay the cost of condemning’ property to widen and open Culvert street to its full width between said points.
    Prior to July 22, 1887, Culvert street, between Fifth and Sixth streets, was partly opened to the width, of forty-three feet, but at the corner of Fifth street was only open about twenty feet, a lot belonging to the said Clifford Perin extending out into the street for about twenty-three feet at Fifth street, and running back about 166 or 167 feet, and extending about fourteen feet into the street at the rear, as shown by the plat attached to the original petition of which the following is a copy:
    
      
      
    
    
      This lot, so projecting into the lines of the street and shown by crossed lines on the plat, was condemned and appropriated by ordinance of the city of Cincinnati duly passed July 22, 1887. Said ordinance directed the city solicitor of said city to institute the necessary proceedings in a proper court to ascertain the compensation to be paid the owners of said ground so condemned, and also provided for a special assessment in the following words:
    “Section 2. The amount so found, together with the costs and expenses of said appropriation and the interest on bonds issued, shall be assessed per front foot upon the lots and lands bounding and abutting upon said Culvert street, as opened between the north line of Fifth street and the south line of Sixth street; the said lots and lands so bounding and abutting Culvert street, between the points aforesaid being, and the same are hereby declared to be the lots and lands which, in the opinion of common council, will be specially benefited by said appropriation according to the laws and ordinances on the subject of assessments; the assessment therefor to be payable in ten annual installments, and the same collected as provided bylaw and the assessing ordinance hereafter to be passed, and bonds shall be issued in anticipation of such assessment.”
    In pursuance of said ordinance, the city solicitor instituted proceedings for the purpose of ascertaining the value of the property appropriated, and such value was found to be $4,340.00. The bonds of the city were .issued in anticipation of the collection of the assessment, and the compensation for the property taken and costs paid. Thereafter, on February 2, 1889, the city passed an assessing ordinance to' assess a special tax on the real estate bounding and abutting on Culvert street between Fifth and Sixth streets, on each front foot at the rate of $5.233767 per foot, payable in ten equal annual payments, with interest at five per cent, per annum on the deferred payments, and in default of payment when due to be certified forthwith to the county auditor* to be by him placed on the tax duplicate and collected according to law.
    The cause to enjoin the collection of such, special assessment was heard in the Superior Court at special term, upon the original papers and pleadings on file, but the court finding that important questions of law and fact were raised by the parties, it was ordered that the cause be, and the same was reserved to the Superior Court in general term upon the certified bill of evidence filed in the case.
    The Superior Court, in general term, found that the said lot of Clifford Perin, 166.43 feet front and a part of which was the condemned strip, is the only lot bounding and abutting- on the strip of ground condemned; and also, that the lot of Henry Batsche, 150 feet front, and 16.43 feet of the lot of Margaret Wilmer bound and abut upon the part of Culvert street where it was widened under the condemnation proceedings; but further found, that none of the property owned by any of the other complainants in the petition, either bounds or abuts upon the condemned strip, or lies opposite the condemned strip, but all of it abuts upon Culvert street where no change in width was made by said condemnation proceedings.
    The court thereupon ordered, adjudged and decreed, that the assessments for the opening and widening of Culvert street be, and the same were declared null -and void as against all the parties complaining- and . named in the petition, except Johanna Kirkpatrick and Margaret Wilmer (as to whom the. cause was not taken from the special term on reservation), and except the assessment upon the said lot of Clifford Perin, which was held to be valid and binding. It was further ordered and adjudged, that the defendants, the city of Cincinnati, Edwin Stevens, city comptroller, Fred Raine, county auditor, and John Zumstein, county treasurer, be, and they were perpetually enjoined from demanding’, collecting or certifying any of said assessment, as against any of said parties named in the petition, as to whom, said assessments were found null and void; and that the cause be dismissed as to Clifford Perin, and that the defendants pay the cost of the action. Clifford Perin excepted to the judgment as to him, but authorized no petition in error to be filed, and the defendants excepted to that part of the judgment finding said assessments void, and enjoining the collection of the same.
    To reverse the judgment of the Superior Court in general term, this proceeding in error is instituted.
    
      Theodore Horstman and John Galvin, Corporation Counsel, for plaintiffs in error.
    This is a front foot assessment. The assessment involved in this ease is one by the foot front plan. It is not by the benefit plan nor by the valuation plan in any sense, nor does it, in any sense, involve any consideration of either of the latter plans. It is a front foot assessment and nothing else. The only question in the case, in our judgment, is, whether the property, involved and assessed abuts and abounds the improvement, in the words of section 2264, Revised Statutes, providing for front foot assessments; or, in other words, whether in making this assessment by the front foot, property was mistakenly included and assessed which does not abut the improvement.
    It was claimed by counsel for the property owners in the court below, that this assessment involves both the benefit plan and the front foot plan, and that an assessment involving more than one plan is void. He cited in connection the case of Kelly v. Cleveland, 34 Ohio St., 468, but we submit that that case does not bear out the argument he deduces from it. That case involved an assessment by benefits, but instead of apportioning the benefits in the manner provided by law (now sections 2277, 2278, 2279, 2280, 2281 and 2282, Revised Statutes), it was. attempted to simply make a uniform apportionment of the assessment by the front foot.
    We admit, of course, that an assessing district is necessary and also a determined, fixed plan of apportionment.
    The assessing district in this case is the property abutting the improvement. The plan is the front foot plan. The ground upon which counsel bases his claim and argument about this involving a benefit assessment as well as a front foot, of course assumes that some of this property does not abut the improvement, and, therefore, is not assessable by the front foot, and the use in the condemnation ordinance of this language, after defining the property to be assessed, viz., the said lots and lands so bounding and abutting Culvert street, between the points aforesaid, being and the same are hereby declared to be the lots and lands which, in the opinion of the common council, will be specially benefited by said appropriation.
    No property can be assessed which is not benefited. Section 2283, Revised Statutes. The recital that the lots to be assessed are specially benefited is not an attempt to make an assessment by benefits, in any sense. It is a mere necessary recital that the lots. abutting the improvement assessed by foot front are specially benefited. It seems to us merely necessary to state the proposition that this is an assessment by the foot front and does not involve an assessment by benefits as a plan in any sense, and that therefore any property which abuts the improvement is liable for this assessment; and that the claim of defendants in error that the assessment, even against Perin, who admittedly abuts the improvement (the grounds taken under their theory of what constitutes the improvement), is fallacious and will not stand.,
    By the amended petition of July 6, 1892, coun.sel for defendants'in error takes exactly the opposite shoot from that set up as his second cause of action in his original petition, by claiming that the improvement means only the ground condemned and taken, and not the street as improved. This same question was also raised, argued, and submitted to this court by counsel who represents the defendants in error in this case, in the case of The City of Cincinnati v. Larz Anderson, Executor, decided by this court with the case of Caldwell v. The Village of Carthage, 49 Ohio St., 334.
    The assessment in the Anderson case was a front foot assessment, exactly the same as the assessment in the case at bar. The condemnation ordinance in said case provides that the cost and expense of the condemnation and appropriation, together with costs of the action, shall be assessed per front foot upon the property abutting on Ravine street and Undereliffi avenue between Tusculum avenue and the northeast corporation of the city, etc. The Longworth property was a half mile or more from the property condemned, or the part of street widened; yet this court held that assessment valid. 49 Ohio St., 351.
    The Rademacher case decided at the same time, and with the-Carthage case and the Anderson case above, 49 Ohio St., 351, was also exactly like the case at bar, in that the street as improved was assessed, and not simply the property abutting the ground condemned to open the street.
    The case of Scoville v. Cleveland, 1 Ohio St., 126, will no doubt be cited and relied on by counsel, as holding that the improvement means the part of streets widened or opened, and not the whole street (though his contention in this ease and the finding of the general term goes even further than that, and is, that not even the part of the street widened is the improvement, but only the ground taken to widen the street), but an examination of the Seoville case will show that the assessment there was by the benefit plan to pay the cost of improving by a surface improvement a part of a street, and it was claimed that the assessment should be upon the whole street, part of which was improved, and the court held that the language of the law that an assessment by benefits should be levied on property abutting the street improved and other lots near thereto, meant the part of the street improved and lots near thereto, and did not require the assessment to be levied upon the whole street, perhaps a mile or more away from the improvement.
    In Creighton v. Scott, 14 Ohio St., 438, the assessment was also for the surface improvement of the street, and it was held that the assessment was properly limited to the part of street improved.'
    We admit that proposition. And in a surface improvement it is easy to determine what is the improvement. It is the tangible, perceptible thing done. But we are still confronted with the question at issue in this case, viz.: What constitutes the improvement where property is condemned to widen or open a street ? Is it simply the ground taken? Surely, that does not constitute the improvement. Take, for instance, the case at bar. The triangular strip of g’round projecting- out from Perin’s' property into what should be Culvert street, when condemned and appropriated, certainly does not constitute the improvement. But, on the other hand, is it not the reasonable and only fair thing to say that Culvert street, as opened and widened from Fifth street to Sixth street, constitutes the improvement.
    It is true that this court in the case of Smith v. Toledo, 24 Ohio St., 121, held that the extension of a street was not necessarily an improvement of the street extended. In the Smith v. Toledo case, the assessment was levied upon the property immediately abutting the ground taken, which was declared by the council in that case to be the improvement; and the court upheld the assessment in the face of the claim of such property owners, that the improvement was the whole street.
    We submit that that decision unholds our claim that the improvement is what the city council declares it to be in their condemnation ordinance.
    
      It seems to us that, whether we are not right or not, in our own claim as to the meaning of improvement, it certainly means more than the ground taken; it means at least the part of the street opened or widened. In other words, in this case, it means at least Culvert. street from Fifth street to a point 167 feet north, that being the part of the street widened; and hence Batsche and Wilmer, as well as Perin, abut the improvement, however narrow and limited a meaning may be given to that term.
    
      Coppock & Gallagher and Wm. C. Herron, W. M. Ampt, for defendants in error.
    Under section 2264, Revised Statutes, we claim that nonabutting property is not assessable' at all by the front foot, but is to be assessed by the benefit rule of apportionment. An assessing district is absolutely necessary as the basi s of a special assessment and a- fixed plan of apportionment covering the entire district, and a failure in either respect renders the assessment invalid. Section 2264, Revised Statutes; Welty on Assessments, section 297.
    The assessing district was properly established; but it is contended that the rule adopted for apportioning the assessment was fatally bad.
    Section 2264, Revised Statutes, not only requires ah assessing district to be established and a rule of apportionment to be adopted, but this is required to be done before the improvement is made. The assessing district, under section 2264, must include abutting property at all events, and adjacent and contiguous property also, if it is benefited.
    
      In this case the decree finds and sets out section 2 of the condemning- ordinance, from which it appears that the assessing district is Culvert street, from Fifth to Sixth, and that all the abutting property thereon is declared to be specially benefited, which finding of special benefit by a council is conclusive, if honestly made. This section also fixes the rule of apportionment, which is the foot front for the entire district. Our contention is, that while an assessing district has been established in a proper manner, yet that the rule of apportionment is fatally defective under section 2264, Revised Statutes.
    The result is, in this view, that no valid rule of assessment has been fixed as to that property which does not abut upon the improvement or the ground condemned for street purposes, although all of it is declared benefited.
    We claim further, that not even as to the abutting- property has a valid rule of assessment been established, and this by reason of the omission of a valid rule of assessment as to the non-abutting property, and that the assessment should be enjoined as to abutters as well as nonabutters.
    The rule of apportionment failing as to the non-abutting property, which, being found benefited, must be assessed, under section 2264, there is no rule of apportionment covering the entire assessing district; and so the assessment must fail as to the entire district as to the abutting as well as the nonabutting property. The exemption of a part of the district violates the rule of equality.
    The .foot front rule must fail as to the abutting property, because there is no means of ascertaining what proportion of the total cost is assessable on the abutting property, the gross amount assessable upon the nonabutting benefited, property being- unknown. The result is, that the assessing- district, as a whole, is without á rule of apportionment covering its entire extent; and the abutting and nonabutting parts have not the data or proportion of cost which is to be assessed upon each.
    The nonabutting property cannot be assessed under these proceeding’s because the foot front rule does not apply to it, and the condemning ordinance has not attempted to fix or apply any other rule of apportionment. And the abutting property is not assessable under these proceedings for the reason already stated, viz: in omitting to fix a rule for the nonabutting property, which the record shows, in each case, is the larger part, there is no blanket rule covering the whole assessing district. State v. Plainfield, 9 Vroom, 93, holds that where legal and illegal assessments for benefits are so blended that they cannot be separated, the whole assessment will be set aside. State v. Passaie, 9 Vroom, 169, holds where a principle of apportionment is adopted different from that prescribed, the assessment is void. State v. Commissioners, 9 Vroom, 190, holds that the mode of distributing the burden and of defining the property out of which the taxes are to be made, must both be designated, and some certain standard of assessment must be established. 8 Vroom, 12, 415. Kelly v. Cleveland, 34 Ohio St., 469, is a case where the plan of assessment adopted commingled the benefit and the frontage plan, and the assessment was not only held void but noncurable under the curative section.
    Where an assessing district is established by bounds specifically defined, as in the cases at bar, and. the rule of apportionment is defective as to a part of the district, or where it is by the foot front rule when such a rule is inapplicable to such part, then there is no valid rule as to any part of the district, even for that part where the foot front rule is applicable, or has been applied. The rule of apportionment must be coextensive with the district. Jœger v. Burr, 36 Ohio St., 164.
    Section 2264 is a revision- and consolidation of all the sections of the code of 1869, relating to assessments, being the only section authorizing them. Section 576 authorized assessments on abutting property, and 579 authorized nonabutting property, if benefited, to be included in the same assessment. The cost was to be apportioned by council, so much to be assessed by the foot front on the abutting property, and so much on the nonabutting property by the rule of benefits. We claim that section 2264, Revised Statutes, is substantially the same, and should be so construed. State v. Stockley, 45 Ohio St., 308.
    We do not question the right to assess the property specially benefited in a given case. When it is said the whole of Culvert street between Fifth and Sixth is improved, it means that it is benefited by the particular thing done, and the particular thing which is done is the improvement, and the consequence of it in the way of special benefit is the foundation of an assessment upon property which does not touch the thing itself done. In a sense the surface improvement of apart of a street improves the whole street, or at least that part in the vicinity, yet you are not bound to assess the whole street under section 2264. 1 Ohio St., 126; 14 Ohio St., 438.
    The Anderson case, 49 Ohio St., 351, was not ex-aetly like the ease at bar, for we claimed there that one thoroughfare under two names in different parts was not the same street, and no question was raised, urged, argued, considered or decided as to the rule of apportionment as to nonabutting property. In the second cause1' of action in the case at bar, we claimed only a reduction of assessment based on the entire street being’ assessable under section 2271.
   Dickman, C. J.

The special assessment, theva-' lidity of which is in controversy, was on the front foot plan, one of the modes of assessment designated in the Revised Statutes. The only question in this case which we deem it necessary to consider is, whether the costs and expenses of appropriating property to open Culvert street, should have been assessed per front foot upon the lots and lands bounding and abutting upon Culvert street, as opened between the north line of Fifth street and the south line of Sixth street, or, should have been assessed only on the lots and lands bounding and abutting upon that section of the street which embraced the improvement or property appropriated. And the same question, in principle, it may be here stated, was not, as suggested in argument of counsel, considered or passed upon by this court in the Anderson and Rademacher cases, decided in Caldwell v. Carthage, 49 Ohio St., 334.

It is provided by section 2264 of the Revised Statutes, that vdien the corporation appropriates lots or lands for the purpose of opening, or widening a street, the council may decline to assess the costs and expenses of such appropriation on the general tax list, in which event, such costs and expenses “shall be assessed by the council on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the foot front of the property bounding and abutting upon the improvement, as the council, by ordinance setting forth specifically the lots and lands to be assessed, may determine before the improvement is made, and in the manner and subject to the restrictions herein contained.” The statute thus provides three forms of special assessment: (1) in proportion to benefits resulting from the improvement; (2) according to the value of the property assessed; and (3) by the foot front of the property bounding and abutting upon the improvement, three statutory modes of apportioning by special assessment, the costs and expenses of the improvement upon the lots and lands deemed to be especially benefited thereby.

The earliest law in this state authorizing municipal corporations to levy special assessments, to pay for land appropriated for opening or widening streets, on the property benefited thereby, independently of frontage or the value of the abutting property assessed, is found in section 539 of the Municipal Code of 1869,. as amended April 12, 1873 (70 Ohio Laws, 126). By that section, the council had power to assess the costs and expense of such appropriation upon the lots or lands benefited thereby — including not only the lots and lands abutting upon the street, but also those contiguous and adjacent. By subsequent section 579, it was provided, that if in the opinion of the council or board of improvements, the same would be equitable, a proportion of the cost of making the improvement might be assessed upon such other lots or lands within the corporation, not bounding- or abutting upon the improvement, as would, in the opinion of the council or board, be specially accommodated and benefited thereby. And by section 584, in all cases in which it might be determined to assess the. whole or any part of the cost of any improvement upon the lots or lands bounding or abutting upon the same, or upon other lots or lands benefited thereby, the council might require the board of improvements, or might appoint three disinterested freeholders of the corporation, or vicinity, to report to the council an estimated assessment of such cost on the lots or lands to be charged therewith, in proportion, as nearly as might be to the benefits which mig’ht result from the improvement to the several lots or parcels of lands so assessed. The aforegoing provisions of sections 539 and 579 are substantially embodied in section' 2264 of the Revised. Statutes; and section 584, without diminution, has been carried into section 2277 of the Revised Statutes.

A plan of assessment in proportion to resulting benefits, distinct from that according- to valuation, and that by the foot front, is therefore provided by statute, which is not limited to lots and lands bounding and abutting upon the improvement, but may be extended to lots and lands contiguous and adjacent, though situated on streets other than that of the improvement.

Special assessments according to valuation are characterized by distinctive features, and are regulated by a separate statutory plan under section 2269 of the Revised Statutes.

It must be evident, that the assessment under consideration in the case at bar, can be referred neither to the class according to valuation, nor to that in proportion to benefits, and must be regarded as an assessment by the foot front solely.

It is true that in the condemnation ordinance the lots and lands to be assessed, ‘ ‘bounding and abutting upon said Culvert street” between the given points, are declared “to be the lots and lands which, in the opinion of the common council, will be specially benefited by said appropriation.

But as properly said in argument of counsel, such declaration of benefits to accrue was only the finding and recital usual in ordinances providing for assessments, whether by benefits, by valuation, or by foot front, that the property to b¿ assessed is the property benefited. Such declaration by the council, that the property specially assessed will derive a special benefit, is only the statement of a legal presumption that accompanies every special assessment to pay for a street improvement. Whatever may be the plan adopted, whether by the foot front, according to valuation, or in proportion to benefits, the underlying principle is, that those who are to make a special contribution to bear the cost of a public improvement, are at the same time to suffer no pecuniary loss thereby — their property being increased in value to an amount at least equal to the sum they are required to pay. Cooley on Taxation, 606 (2d ed.).

The assessment in controversy being by the foot front, the assessing district established by the council, instead of including- only lots and lands bounding- and abutting- upon the improvement, embraced non-abutting property as 'well, lying between the north line of Fifth street and the south line of Sixth street. Recognizing the authority of the council to create an assessing district, it must be exercised in accordance with the requirement of the statute. The statute — section 2264, Revised Statutes — requires the council to set forth by ordinance “specifically the lots and lands to be assessed but when the assessment is by the foot front, it must be “of the property bounding and abutting upon the improvement.” In such case, the legislature has prescribed the assessing district, which excludes property not bounding and abutting upon the improvement.

The improvement upon which the property must abut has reference to the specific thing which is done or added to the street whereby it is improved. The improvement is the beneficial or valuable change or addition, and of definite location on the line of the street. In the present case, the improvement was embraced in that part of Culvert street, which was evidenced by appropriating the land of Clifford Perin. But it cannot be properly said, that all the lots and lands abutting on Culvert street, between Fifth and Sixth streets, abutted on the improvement, within the meaning’ of the} statute, because the street between those points might be improved, in the sense of being benefited, by the widening of the part at Fifth street.

The record discloses that the assessment was held by the circuit court to be valid and binding as to the property of Perin, because it abutted on the strip of ground condemned. But the property of Henry Batsche, bounding’ upon the part of Culvert street where it was widened under the condemnation proceedings, and lying opposite the condemned strip, was relieved from the assessment as land not abutting upon the improvement. It is true a portion of the street intervened, and the land of Batsche did not come in actual contact with the ground appropriated; but we do not think that the words of the statutes, “bounding and abutting upon the improvement,” are to be so restricted in their application as to exclude property in the same situation as that of Batsche in reference to the improvement. As soon as the appropriation was made, the ground became incorporated as part and parcel of the widened portion of the street, and the propertjr on both sides of the street abutted then on the improvement. Thereafter, the proprietors of lots. fronting on both sides of the street might enjoy the free and lawful use of the condemned land; and the easement in the street, appendant to the abutting lots, extended as well to the newly appropriated ground as to the remaining portion of the street in front of the lots.

In Richards v. Cincinnati, 31 Ohio St., 506, it was held that, where a strip of land ninety-one feet in width was dedicated for a street, and the municipal authorities improved a street thereon, of the width of ninety feet, leaving one foot on one side thereof unused, except in sloping the embankments and excavations, the owners of property abutting on such foot of land became liable to be assessed as owners of property abutting on the improvement. It was said by McIlvaine, J.: “It seems to us that, in order to exempt these proprietors from assessment as abutters on the improvement, it must appear that this intervening foot of land deprives them of full, free, and lawful access to the street improved. * * * If the public right to its use still continues, * * * their liability to assessment is certain. That this foot of land, before the improvement of the avenue, was subject to the use of the public, as part of a highway, is not disputed ; and we are unable to find any ground upon which it can be held that such right in the public has terminated. ’ ’

The principle thus announced by this court was applied in Chicago, Burlington and Quincy Railroad Company v. The City of Quincy, 136 Ill., 563, where the sidewalks, instead of the street, as in the case at bar, intervened between the street improvement and the lots bounding on the sidewalks. It was there held that, where a street is required to be improved between the sidewalks on either side, land or,lots extending up to the sidewalk will be subject to special taxation to defray the expenses of the improvement, as property contiguous to such street, the sidewalks for this purpose, being a part of the street, though not ordered to be improved.

In accordance with the foregoing views, the assessment by the foot front should be held valid and binding as to the property of Henry Batsehe —as bounding and abutting upon the improvement —and with a modification of the judgment of the circuit court in that respect, the judgment of that court should be affirmed.

Judgment accordingly.

Minshall, J., dissenting from the modification.

Spear, J., did not sit in this ease.  