King v. City of Dayton

10 Ohio C.C. (n.s.) 522, 1907 Ohio Misc. LEXIS 316

• Court: Ohio Circuit Courts
• Decided: June 16, 1907
• Status: Published

Opinion

The sewer districts were never changed. The reference in the resolution of the necessity and the ordinance, etc., to those parts of the district covered by the plan of improvement, as “sewer districts Nos. 6 and 7 ’ ’ was an error of description simply and did not constitute a repealing or amending clause. The ordinance itself was not inconsistent with the sewer district plan already established. It simply covered a part of the territory, leaving the remainder for further disposition. It is competent, however, to assess the whole district for the construction of the’ main sewer. According to the statute the assessment can not be made in any other way. Should a new main sewer ever be constructed west of Western avenue, the property east of it in the same district will have to help pay for it.

William G. Frizell and R. G. Corwin, for plaintiff. Thomas B. Eerrman, City Solicitor, and Philo G. Burnham, Assistant Solicitor, contra.

If the notice was misleading and plaintiff did not have his day in court at the time, he has it now and may present his objections.

It is not necessary that property be improved so as to make sewer connections immediately available. If the sewer is adequate and so located that it may be utilized in the future, the lands are specially benefited. The presumption is that the present plan will be perfected so as to include convenient laterals as the city grows. The assessment for the main sewer can be but once and must be now in order to provide prompt payment for its eonstruction.-

Coneeding that the. law in force at the time of the passage of the resolution of necessity applies as to the time of collection, etc., wherein has the plaintiff been prejudiced? The few days difference in interest would be too small for the consideration of a court of equity. Besides, it was an error for which there is a remedy at law.

There was no excess in the amount assessed for the main sewer. The pumping station was a necessary part of the equipment.

The increased cost necessary to make it large enough for the storm water for the entire district should be collected therefrom, because the present surface drainage for that part which is west of Western 'avenue is but temporary and must inevitably be wiped out by the improvements as they are constructed.

The assessments must be grossly excessive in order to come within our jurisdiction for reduction. We do not find them so. Decree for defendants.