
    Lutman et al. v. The Lake Shore & Michigan Southern Railway Company.
    
      Assessment upon lands — For construction of township ditch — Suit to enjoin — Premature if tmistees have takemio steps to make the assessment.
    
    A suit to enjoin the assessment upon the lands of the plaintiff of a portion of the costs of constructing a township ditch upon the ground that his lands will not be benefited thereby, is prematurely brought if the trustees have taken no steps to make such assessment; and unless the trustees in their answer assert the right or admit their intention to make such assessment a judgment in favor of the plaintiff for an injunction for costs, is erroneous.
    (Decided June 1, 1897.)
    Error to the Circuit Court of Wood county.
    The case was tried on appeal in the circuit court. The railway company sought an injunction against the plaintiffs in error, who are the trustees of a township to restrain them from constructing a township ditch across the line of its road for the reason, among others, that it would not be benefited thereby, and the trustees intended to assess upon it a portion of the costs of constructing the ditch. The defendants did not, in their answer, admit that they intended to make such assessment. There was no evidence showing that they had apportioned any portion of the work to the company, or taken any official action whatever toward making such assessment. The court found that the company would not be benefited by the construction of the ditch, and enjoined the trustees from making such assessment, though permitting them to make the improvement. It .also rendered judgment against the trustees for costs.
    
      
      Baldwin c& Harrington, for plaintiffs in error.
    The circuit court should have sustained the demurrer.
    Full power is vested in the trustees to construct ditches even across railroads. Section 4511 R. S. Sessions v. Crunhilton, 20 Ohio St., 349."
    They are not prohibited from establishing and constructing- ditches because the same territory is already drained by other ditches, nor are they restricted to the natural water course. 37 N. L. B., 189; Miller v. Weber et al., 1 C. C., 130; Affirmed by Sp. Court without report; 19 Wkly. Law Bull. 350. The plaintiff had an adequate remedy at law. It should have perfected its appeal to the probate court. Section 4533 R. S., 37 Ohio St., 508; Haff v. Fuller, 45 Ohio St., 495; JDoney v. Trustees, 1 C. C. 566; Miller v. Board of Commissioners, 3 C. C. 617 S. C. Affirmed by Sup. Court without report, 27 Wkly. Law Bui., 216; Vornholt v. 'Cordon, 30 Wkly. Law Bui., 33.
    The acts of the Legislature questioned by the defendant in error have been considered and discussed in numerous cases in the circuit and supreme courts hereinbefore cited, and have always been upheld. Sections 4518, 4533, 4520 and 4521, R. S.; Kent v. Ferhins, 36 Ohio St., 640.
    Compensation is the word used in the constitution. Section 19, article 1 of the constitution.
    The words compensation and damages are held to be synonymous. Grove v. Commissioners, 8 C. C., 167, s. c. Affirmed by Sup. Court, 33 Wkly. LaW Bui., 144.
    The statutes authorizing County Commissioners to construct ditches are similar. Section 894 R. S.; "Limmerman v. Canfield, 42 Ohio St., 463. If any damages would result to the Railway Company, or it should be entitled to compensation and adequate remedy at law is provided by sections 4533, 4540,’ Revised Statutes.
    
      Potter (& Emery, for defendant in error.
    While devoted to the accomplishment of purposes of conséquenee to the public, the railroad property is nevertheless private, acquired, constructed and maintained by private capital, and the subject of private ownership upon faith in being protected in the. use and enjoyment thereof for the purposes of its franchise, and thus entitled to the benefit of those legal safeguards which the law affords to private property generally.
    The provisions of R. S. 4511 do not confer upon township trustees authority to compel the railway company to submit to either having- an open ditch across its tracks, or at its own expense, regardless of amount, to construct such pipe, drain, aqueduct or culvert as will afford equivalent water way across its right of way grounds?
    There is an entire absence of anything- indicative of legislative intent to authorize the maintenance of such open ditches across a railroad or turnpike road. R. R. Co. v. Dayton, 23 Ohio St., 518; R. R. Go v. Belle Centre, 48 Ohio St., 273.
    Where the ground of complaint against the assessment is not one of mere irregularity, but of manifest palpable wrong, the court has undoubted authority and jurisdiction to hear and determine such complaint, and, finding the complaint sustained, to enjoin the imposition of the assessment. R. S. 5848; Buckley v. Commissioners, 1 Cir. Ct., Rep., 251; Stephen v. Daniels, 27 Ohio St., 527; Steese v. Oviatt 24 Ohio St., 248; Peck v. Watros, 30 Ohio St., 590; Chesbrough v. Commissioners, 37 Ohio St., 508; Tone v. .Columbus, 39 Ohio St., 28L; Blue v. Wentz, 54 Ohio St., 247.
    There can be no valid assessment in the absence of or beyond manifest special benefit. Chamberlain v. Cleveland, 34 Ohio St., 551; Weioell v. Cincinnati, 45 Ohio St., 425.
    The facts and circumstances as to the assessed or proposed to be assessed premises, with and without the improvement, are matters to be given in evidence, by parol or otherwise, and from which evidence the uourt is authorized to determine tüe question whether the land is or is not specially benefited, and the amount if any of such special benefit. B. B. v. Campbell, ,4 Ohio St., 583; B. B. Co. v. Ball, 5 Ohio St., 573; Powers v. By. Co., 33 Ohio St., 437; By. Co. v. Gardner, 45 Ohio St., 309.
    And parol evidence may be received to show that the assessing board did not act upon the proper basis. Chamberlin v. Cleveland, 34 Ohio St., 571; Buckley v. Commissioners, 1 Cir. Ct. Rep., 251. And upon such trial a witness may be asked and answer as to whether the land will or will not be benefited by the improvement. Miller v. Webber, 1 O. C. Ct., 130.
    The decree in no wise interferes with or prevents construction and maintenance of a suitable conduit at the expense of land owners whose lands are especially benefited by the improvement.
    What it does interfere with and prevent is;
    1. Construction and maintenance of such a ditch as will unnecessarily interfere with,- supersede and defeat the use of the railroad ground for railroad purposes.
    2. Imposing upon the Railway Company the expenditure of 8150 in the construction of a ditch which, in no wise specially benefits the company or its property.
   By the Court.

Although lands not benefited by the construction of a ditch are not assessible with any portion of the costs thereof, this suit was prematurely brought, since the trustees had taken no action which contemplated the making of such assessment. And since the trustees did not in their answer assert the right or declare their intention to make such assessment, the judgment against them for costs is erroneous.

Judgment reversed.  