
    Blue et al. v. Wentz et al.
    
      Assessment of land for drainage — Lands provided with natural drainage — Not 'liable for costs of ditch for other lands — Advantage of higher 'tenement over lower, natural right of owner— Rule for assessment on lands benefited by artificial drainage.
    
    1. Where the lands of an owner, by reason of their situation, are provided with sufficient natural drainage, they are not liable for the costs and expense of a ditch necessary for the drainage of other lands, simply for the reason that the surface water of his lands naturally drain therefrom to and upon the lands requiring artificial drainage.
    2. A lower tenement is under a natural sórvitude to a higher one to receive from it all the surface water, accumulating from falling rains and melting snows, or from natural springs, that naturally flow from it to and upon the lower one. This advantage of the higher tenement is a part of the property of the owner in it, and he is not indebted to the lower tenement therefor.
    3. In making an assessment on lands, benefited by artificial drainage, the extent of their water shed is not the proper rule, but the amount of surface water for which artificial drainage is required to make them cultivable, and the benefits that will accrue to the lands from such drainage. However much water may fall on them or arise from natural springs, if, by reason of their situation, they have adequate natural drainage therefor, they are not liable for the cost of artificial drainage to other lands.
    (Decided March 17, 1896.)
    Error to the Circuit Court of Wyandot county.
    The action below was brought to enjoin certain assessments made on the respective lands of .the plaintiffs to pay for the improvement, of a ditch. The suit was against the petitioners for the improvement and the proper county officers. On issues made up and tried,, judgment, was rendered in favor of the plaintiffs, granting the relief. The case was appealed to the circuit court, where, on leave given, the defendants demurred to the petition, and the demurrer was sustained. On leave given, the plaintiffs filed an amended petition; and to this a demurrer was also sustained. The plaintiffs, electing to abide by their amended petition, the court rendered judgment dismissing it. The only question in the ease before us is as to the sufficiency of the petition, to entitle the plaintiffs to relief.
    Omitting the description of the lands and that of the ditch, as well as some immaterial averments, the petition is as follows:
    The plaintiffs say: “They are the owners in severalty of the tracts of and parcels of land in Wyandot county, described as follows : * * *
    In the year 1873, upon petition duly filed and bond given by David Morrison and others, the board of commissioners of said county caused to be located, established and constructed a county ditch, known as the Morrison ditch, number 14, on the following route: * * *
    “Said ditch was established and constructed at a total cost of about five thousand dollars, for the purpose of draining a large swamp or marsh, which to that time had been wholly worthless, and thereby reclaiming and rendering valuable and capable of cultivation a large body of land covered by the waters of said swamp, and therefore utterly incapable of being cultivated, pastured or put tó any profitable use.
    “The lands of plaintiffs, or any part thereof, were not benefited by said ditch in any manner, and, accordingly, when the cost and expenses of the construction of said ditch came to be assessed upon the lands benefited thereby, no part of said cost or expenses was apportioned or assessed upon the -aforesaid lands of the plaintiffs, but said entire cost and expense was apportioned to and assessed upon the lands' which the drainage of said swamp would render not only productive but peculiarly valuable, the actual value of a large portion of said lands having been increased tenfold.
    “And the plaintiffs now complain and say that on the 17th day of February, 1891, a petition signed by the defendants, Emanuel Wentz, Amos Schoenberger, W. W. Duffield and David Kauble was filed with the auditor of said county, praying the defendants, the board of commissioners of said county, to cause said Morrison ditch to be deepened and widened from its original point of commencement to its intersection with what is known as the Hart ditch, on land then owned by one M. D. Phillips, also for the widening and deepening of a certain branch ditch entering said main ditch from the west, near its intersection with said Hart ditch, and that such proceedings were had by said commissioners on said petition; that on the 10th day of March an order was made by them granting the prayer of the petition, and directing the county surveyor to go upon the line of said ditch therein. described and perform such duties and make such reports and apportionments as are contemplated and specified in sections 4454, 4455 and 4456 of the Revised Statutes of Ohio.
    “And afterwards, on or about, the 10th day of April, 1891, said surveyor filed his report, showing the general character of the improvement, with an estimate of the total cost thereof and an apportionment of the same. - By said report and apportionment over sixty per cent, of the total estimated cost of the proposed enlargement of said ditch is assessed against the lands of plaintiffs, heretofore described.
    “And plaintiffs say that said apportionment is unjust and unfair, and that had it been made according to benefits, no part of the cost of said ditch would have been apportioned against them, or either of them.
    “Upon receiving notice thereof, and that the same would be for hearing before said board of commissioners on the 23d day of April, 1891, plaintiffs appeared and filed their exceptions to said apportionment, but the same were disregarded by said board of commissioners, and with the following trivial alterations, by them made, said report and apportionment were approved by them, and an order made for the sale by said surveyor of the construction of the work of enlarging said ditch, as proposed in his said report.
    “At the time of approving and confirming said report and apportionment, the said commissioners ordered the auditor to put the assessments so made and charged upon the said lands of the plaintiffs upon the proper duplicate for collection.
    “The said commissioners and auditor are threatening to take all the steps necessary to make said apportionments liens upon the plaintiffs’said lands, and to collect the same by legal proceedings, to the great and irreparable damag’e of the plaintiffs.
    “And plaintiffs say that although no benefit whatever would accrue to their aforesaid lands by reason of the construction, cleaning out, deepening or widening of said ditch, although none of said lands were assessed for the original location, establishment or construction of the same, the said defendants are insisting that the plaintiffs should bear a large part of the expenses of cleaning out, widening- and deepening of said ditch, because the aforesaid lands of plaintiffs naturally drained their waters into said swamp, and the same are carried off through said ditch; and the said defendants, the board of commissioners, and their engineer, have made the apportionment for the cost and construction of said ditch not according to benefits which would accrue to the lands of the plaintiffs, but according to the quantity of rainfall or quantity of water which fell upon the lands of the plaintiffs and would be carried off through said ditch.
    “But the plaintiffs say that whatever benefit might accrue to any lands assessed for the location and construction of said ditch would accrue to the defendants alone, and that all the benefits therefrom would accrue to the lands of the said defendants.
    “The plaintiffs therefore say that said proposed assessments upon their lands are unauthorized, illegal- and oppressive; that they, the said plaintiffs, are united in interest in resisting the collection of any sum whatever, for the purpose contemplated in the aforesaid proceedings of the commissioners, and that the plaintiffs and defendants are the only parties affected by said proceeding;
    “The plaintiffs say that the location and construction of said proposed improvement is not conducive to the public health, convenience or welfare, but was specially located and apportioned for the private benefit of the petitioners for said improvement; nor did said commissioners proceed to view the line of the proposed improvement, and to determine by actual view of the premises along and adjacent to the line of said ditch whether the said improvement was necessary or would be conducive to the public health, convenience or welfare, as is required by section 4452 of the Revised Statutes of this state; nor did the surveyor go upon the line of said ditch, described in the petition therefor, and survey and levy the same, and apportion the cost of location and labor of construction of said improvement, as is required by sections 4454 and 4455 of the Revised Statutes of Ohio, but the location and construction and apportionment thereof was done by the direction and at the suggestion of the defendants herein.
    “And plaintiffs further say, that the said county-commissioners, and the county surveyor have colluded and conspired together for the purpose of promoting the construction of ditches, and to that end have agreed to put such a wrongful construction upon the law as enables them to assess a large portion of the costs and expenses of making ditches upon lands not benefited by their construction, and in pursuance of such collusion the said surveyor made, and the said commissioners confirmed the assessments herein complained of, upon plaintiff’s lands aforesaid and ordered the same to be levied thereon, for the avowed reason that the surface water from said lands runs through said ditch, and for no other reason whatever. And plaintiffs say that the said surface waters have been running through depression in which said ditch is constructed ever since the “flood,” to the same extent that they now do; that said depression was the natural drain and outlet for said waters, and plaintiffs’ said lands were naturally and sufficiently drained thereby, and were as well drained, and as thoroughly, before said ditch was constructed as they have been since, or will be when said ditch has been deepened and widened, the first or, the fiftieth time.
    
      “The plaintiffs therefore ask that the said proceedings of the said commissioners in said matter of deepening and widening said ditch may be reviewed by this court, that the gross injustice in the said apportionment of the costs and expenses of said improvement may be corrected; that said commissioners and said auditor may be enjoined from levying the said assessments or any part thereof, upon any of the said lands belonging to either of the plaintiffs, and that said auditor be enjoined from placing upon the tax duplicate any of the assessments for said improvement, ordered to be levied upon the lands of the plaintiffs, as aforesaid, and that the plaintiffs- may have all other proper relief.”
    
      Carey <£ Parker and JohnD. Sears, for plaintiffs in error.
    
      Elza Carter and D. D. Clayton, for defendants in error.
   Minshall, J.

An assessment on lands presupposes some special benefit to .the lands to be assessed, derived from the improvement for which the assessment is made. When, in the nature of things, there can be no special benefit to the lands from the proposed improvement, an assessment made on them for any part of the cost of the improvement, would be a simple taking of the property of one person for the benefit of another ; and the assessment would be void. This,. I appreprehend, will not be controverted by any one.

In a state of nature, as appears from the petition, the lands of the plaintiffsdid not need drainage, and were not and are not benefited by the ditch. Being higher than those of the petitioners for the ditch, such waters as accumulated upon them from rains and melting snows, naturally-drained off into the swamp or swail, drained by the ditch. The petition avers that when the ditch was originally constructed, which was in 1873, the lands of the plaintiffs not being benefited thereby, were not assessed for its construction, nor was any part of them. But it is now claimed, as the petition avers, that because the lands of the plaintiff’s naturally drain into the ditch, constructed to drain the swail, they should be required to contribute to its improvement, not according to any actual benefit that would accrue to the lands, but according to the quantity of water that will fall upon their lands, and be drained off through the ditch; and this irrespective of the fact that the swail is the natural outlet and drainage of their lands and by which they are as well drained as if no ditch had been constructed.

This, we think, is erroneous. If the lands of the plaintiffs are so situated that, by reason of their level, the surface water thereon derived from falling rains and melting snows, or from natural springs, naturally drained off into this swail, and are no better drained by the ditch than they were by the swail, then it is hard to see upon what principle the lands of the plaintiffs should be assessed for the construction of the ditch or its improvement. It is a principle of property well recog'nized in many of the states, and particularly, in Ohio, that, where lands are situated as-above supposed, the lower tenement is under what is called a natural servitude to receive such waters as flow to and upon it from a higher one, provided the industry of man has not been used to create the servitude. The right which the higher tenement has to require the lower one to receive from it the surface water that naturally drains to and upon it, is a right incident to the higher tenement, and a part of the property of the owner in it; and for any invasion .of this right the law will afford him a remedy. Washburn on Easements, 23, 211, 336; Tootle v Clifton, 22 Ohio St. 247; Butler v. Peck, 16 Ohio St. 334; Crawford v. Rambo, 44 Ohio St. 279, 284; Kauffman v. Griesemer, 26 Pa. St., 407. The reason for this usually given, and generally accepted, is that water is naturally descendible, so that, in the. course of nature, water must flow from a higher to a lower level; .and the owner .is entitled to enjoy his property with such natural advantages as are derived from its situation.

It is then apparent that the proposed assessments upon the lands of the plaintiffs in this case cannot be sustained. To do so would be to compel the plaintiffs to pay for that which they possess as a part of their property in their lands — the right to require the lands on and along’ the swail to be servient to their lands for the purpose of surface and other natural drainage; and for the enpyment .of this right, incident to their lands, they.- cannot be assessed.

But if the lands .of the plaintiffs were subject to assessment,.the.rule adopted for making the apportionment, would still be open to objection. The benefits for which an assessment may be made, must relate to the betterment of the land for the purposes to which it may reasonably be put. It is difficult to see how this may be done by simply estimating the amount of its water-shed. It is not the rain that falls on the land that determines its need of drainage — rain is necessary to its fertility —but it is the amount that falls on it for which artificial drainage is needed. This, from the natural situation of the land, may be little or nothing; and where it is nothing, there can be no ground for an assessment upon it for the purposes of drainage, however much rain may fall on it. The situation of lands with respect to drainage, is a controlling factor in their value; the purchaser pays for this advantage in acquiring his property; and there is no principle of justice upon which others, less favorably situated, can compel him to contribute toward making their lands as good as his in the matter of drainage. Each owner has the right to enjoy his property with its advantages and he cannot be deprived of his advantages for the benefit of others upon some fictitious notion of benefits conferred.

The petition of the plaintiffs make a case for relief ; and, if the facts are as stated in the petition, the assessments should be enjoined. Or if some benefits are conferred on the lands of the plaintiffs by the improvement for which, within the principles before stated, they may be assessed, power is conferred on the court by section 4491, Revised Statutes, to set aside the assessments and cause such apportionment of the cost and expenses to be made, as is required by the facts of the case.

Judgment reversed and cause remanded for further proceedings.  