Drake v. City of Cincinnati

1 Ohio C.C. (n.s.) 567, 1903 Ohio Misc. LEXIS 209

• Court: Ohio Circuit Courts
• Decided: May 1, 1903
• Status: Published

Opinion

It is admitted that the cost of the condemnation of the land must be eliminated from the assessment.

.It appears that the making of the street and the laying of the •sidewalk are distinctly separate improvements.

.Revised Statutes, 2271, applies t'o each improvement separately but oan not be made to apply to them added together.

The real controversy herein is over Revised Statutes, 2283. Plaintiff claims that under this provision the aggregate of these street and sidewalk improvements, being made within five years, can not •exceed twenty-five per cent, of the value of the property. The dty contends that Revised Statutes, 2283, can not apply because said section provides for making two different streets.

A. C. Shattuch, for plaintiff. Albert H. Morrill, for the city. L. M. Mongan, for Thomas Evans, the contractor for the improvement.

We are of opinion that the city’s contention in this behalf must prevail. We appreciate fully the strength of the argument of plaintiff’s counsel that if property is relieved from excessive assessment for the making of improvements upon different streets, it should be all the more relieved from such assessments pilad up on the same street. But this is purely 'a matter of statute, and the statute is plain and explicit and not open to construction or interpretation on this point.

This point has been directly passed upon by the Sixth Circuit, opinion per King, J., and we approve and follow their conclusion. We can not find that this point was called to the attention of the court and expressly decided in the case of City v. Bartley, 52 O. S., 650.

Inasmuch as the city contracted to furnish the sidewalk contractor with a valid -assessment, we are -of. opinion that the city can not urge its assessment to the postponement or defeat of such contractor’s assessemnt or any part thereof. As between the city and Thomas Evans, to the extent that Evans’ assessment is good, it must have a lien upon tire property prior to that of the city.

This is purely an equitable action and Thomas Evans can not inject an issue at law between himself and the city into it as to which plaintiff has no interest. Thomas Evans should prosecute that in a separate suit at laiw, and the decree herein will be without prejudice to such action by him.