
    BENEFITS FROM STREET IMPROVEMENT.
    [Circuit Court of Franklin County.]
    John L. Waldschmidt et al v. Willis G. Bowland, Treasurer.
    Decided, March 25, 1905.
    
      Street — Difficulty of Fining Benefits from Improvement of — Judgment of Experts — Estoppel as to Grantees — Seeking to Escape Assessment.
    
    
      1. In fixing the market value of property, and its enhancement in value from a street improvement, greater weight attaches to the opinions of experts who base their judgment upon actual sales, ■than- to the opinio,nis of residents who ,h,ave purchased property in the neighborhood’ for permanent homes, and give little consideration to i-ts market value as it may he affected from time to time by various causes.
    2. Estoppel arises against a grantee seeking ,to escape payment of a street assessment, where it clearly appears that the assumption of that particular assessment by him constituted part of the purchase price.
    3. Estoppel also arises as to a grantee who purchased after the resolution declaring the necessity of the improvement and the ordinance ordering the improvement were passed, hut before the passage of the ordinance assessing the property.
    4. But where the provision’s in a deed as to payment of a street assessment does not specify any particular assessment for the improvement of any particular street, estoppel does not arise against resistance by the grantee of collection of an assessment.
    Sullivan, J.; Wilson, J., and Dustin, J., concur.
   That the abutting property is specially benefited by a street improvement of the character made upon this street, there is certainly no question. The exact extent of such special benefit is frequently difficult of definite proof.

The present ease is no exception to this rule. It is, as in this ease, so often- a matter qf opinion, as to make it most difficult, at least for the courts, to determine to an absolute certainty the benefits conferred. In this case, with but two exceptions, all the witnesses called by plaintiffs here testified that the abut-, ting property was worth no more after than before the improvement. The majority of those so testifying are owners and occupiers of abutting property, and liable for the assessments. The testimony of nearly all the witnesses called is to the effect that the property along this street is owned and occupied by persons who purchased the property for permanent homes, and not for speculation or sale, and hence the opinions expressed as to the market value before and after the improvement had for their basis only two or three sales of property on this street. We think it may be safely assumed that one who purchases for and occupies property as a permanent home gives to the market value of his property as it may be affected by various causes from time to time no consideration. It is not for sale and was not purchased for sale and hence what its market price may be gives him little or no concern. This can not be said to be the ease with those who purchase to sell, or would sell if they could realize a profit. Neither can it be said of those persons who make it a business to negotiate both sales and purchases, and who necessarily must be informed as to the various causes affecting the market value of real estate. The opinions of such persons, however, are to be viewed in the light of actual sales, when a sufficient number have been made to indicate .with a degree of certainly at least the market value. In this case we have the witnesses for plaintiff®, with the exception above stated, testifying that the abutting property received no special benefit from the improvement, whilst those called by the defendant with one or two exceptions were experts, men engaged in negotiating sales, who testified that the special benefits were from $8 to $10 to $15 per front foot. The amount fixed below, upon this same testimony, reduced the assessment one dollar and fifty cents per front foot. The trial judge being familiar with the street and abutting property took the pains of making a personal view of both.

Louis Sidensticker, called by plaintiffs, who owns and occupies property on this street and is assessed for the improvement, states that in his judgment the special benefits to the property was about $6.50 a front foot. The judgment of this witness impressed this court very favorably. If he was prejudiced at all, it is safe to assume it would be in favor of the plaintiffs. I-Iis testimony impresses the court that he was without prejudice. He purchased a lot of some 31 feet front before the improvement, paying $1,200, which in his judgment was $200 more than its market value at the time, and that after the improvement its market value was increased at least $200 — making the special benefits- per front foot about $6.50. He explains why he paid more than the market value when he purchased. The testimony of the expert witnesses, in view of all the testimony as to the few sales made, we think place the benefits too high, and whilst absolute certainty is not possible, we are of the opinion that the assessment as reduced by the court below is correct, and, therefore, on the question of benefits, the decree of this court will be the same.

The language appearing in the deed of Barbara Meinert to Peter G. Meinert creates an estoppel against the grantee. The assumption by him to pay the assessment in controversy constituted a part of the consideration for the premises, or, to put it more concisely, the assessment together with the amounts of money expressed in the deed constituted the whole consideration. There is no ambiguity in this provision of the deed, and no presumption arises that it was intended the language used should be construed to mean any other than the ordinary signification of the words. We are of the opinion, that this provision in the deed comes clearly within the Caldwell case reported in 37 L. B., 270. The assessments are named in this provision of the deed, being those for the improvement of Third street in front of said premises.

Benjamin Smith by consent of defendant and leave of this court was made a party plaintiff after the appeal. He is the owner of Lot 141, Jaeger addition to the city, abutting upon Third street and is assessed. He purchased from Nicholas S. Oh-]er, taking a deed therefor July, 1892, in which the following provision appears in the covenants of the deed1: “Free and clear from all incumbrances whatsoever except the taxes for 1892 and all assessments for the improvement of Third street under the Taylor Law, which grantee assumes and agrees to pay as part of the purchase money herein.”

O. H. Hosier, for plaintiff.

J. M. Butler, for defendants.

Plaintiff, Smith, contends that this provision in the deed does not constitute an estoppel and that he has a legal right to challenge the assessment. The reason assigned for this contention is that at the date of the deed the assessment ordinance had not been passed. We think this contention is not good, as the resolution declaring the necessity for the improvement was passed by the city council July 19, 1891, and the ordinance ordering the improvement was passed August 21, 1891. The provision in the deed in view of the passage of the foregoing resolution and ordinance on the dates above stated, and that council passed the ordinance assessing the property September 26, 1892, a few days after the purchase by Smith, support the conclusion that the parties knew that the assessment was a lien upon the property, and also the amounts of same at the date of the -deed, and the assumption by Smith to pay the same as a part consideration for the property was with knowledge of the amount of the assessment.

Daniel Hellwig purchased from Henry Stehle January 11, 1892, after the resolution to improve and ordinance ordering the improvement and before the assessing ordinance was passed. The provision in his deed does not specify any particular assessment for the improvement of any particular street, hence it can not be said that the assumption expressed in his deed related to and covered the assessment alone upon Third street for which reason we think he is not estopped.

The decree of this court will, therefore, be the same as that of the court below on the question of estoppel excepting therefrom Daniel Hellwig — and also that Smith is estopped from challenging the assessment. There will be abated from the assessment upon the Hellwig property the sum of $1.50 per front foot, and that he pay whatever may remain of the assessment after such abatement and the costs may be taxed as in the decree of the court below.  