Benham v. Cincinnati

16 Ohio C.C. Dec. 17

• Court: Hamilton Circuit Court
• Decided: July 1, 1904
• Status: Published

Opinion

JELKE, J.

The conclusion reached in Thornton v. Cincinnati, post 33, is applicable to this ease also.

As to the power of the lower court to hear evidence as to the amount of special benefits, we said in the cáse of Cincinnati v. Shoemaker, 25 O. C. C. 256, 257: “If the benefits conferred aré equal to the assessment, there is nothing to move a court’ of equity to intervene by' injunction. ” This was approved by the Supreme Court.

Of course a court cannot make the finding and decree an injunction on that ground without hearing evidence as to the special benefits.

A eorollary of the above is that a trial court may hear evidence of special benefits, find the same, and 'then sáy that up to this point we will not enjoin, beyond it we will, which is practically fixing the assessment. See Schroder v. Overman, 61 Ohio St. 1 [55 N. E. Rep. 158; 47 L. R. A. 156] ; Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120] ; Shoemaker v. Cincinnati, 68 Ohio St. 603.

Where, however, the assessing board has'made a-finding of benefits and has made the-assessment on that basis, süeh finding and assessment are prima faoie correct, and-should not lightly be disturbed or-inquired into in the absence of allegations of some of the-grounds usually invoking, equitable-intervention: ...

Giffen and Swing, JJ., concur.