Mealy v. Cuyahoga Falls City

23 Ohio Law. Abs. 612, 1937 Ohio Misc. LEXIS 1231

• Court: Cuyahoga County Probate Court
• Decided: January 27, 1937
• Docket: No 2846
• Status: Published

Opinion

OPINION

By WASHBURN, J.

This is an action before this court on appeal on questions of law and fact, and is one to enjoin the collection of an assessment levied by the city of Cuyahoga. Falls against real estate owned by Rose Mealy for the construction of a storm-water sewer in the district where her said feal estate is located.

In disposing of the case, It is only necessary to indicate our conclusions, without detailing the facts or specifically indicating our views in reference to the various matters which have been argued and which enter into the solution of the question.

We find no procedural defects which invalidate the assessment, but, on the contrary, we find that the assessment is valid except as to the amount in excess of the limitations provided by law.

From the evidence in the record, we find that after deducting the amount of assessments on said property for improvements of a similar character within the five-year period from .the amount of one-third of the value of the property (the limit of assessment by law), the city was authorized by law to assess said property for the improvement in question only the sum of $470, that all of the assessment in excess of said amount is invalid, and that the assessment for said sum of $470 is not in excess of the special benefits conferred upon said land by said improvement.

In making such computation of the assessments within the five-year period, base assessments without interest or carrying charges have been used.

Peterson v Kelser, Auditor et, 15 Abs 69.

Thompson v Kelser, Auditor et, 17 Abs 354.

We further find under the evidence in the case that Rose Mealy is not estopped from contesting said assessment and seeking the relief sought in this action.

While not involved in this action and therefore not within our power to remedy, the evidence discloses another assessment upon this property for $420.07 for a sewer improvement, which, under the evidence, such as it is, could not possibly be of any benefit to said property; but, for the reasons indicated, we have not taken said assessment into consideration and do not determine any question affecting its validity,

A decree may be drawn reducing the assessment involved in this action to $470, enjoining said city and the other defendants in this action from collecting more than said amount, after crediting thereon any payments upon said assessment which may have been made by Rose Mealy, and ordering the defendant city to pay the costs of this proceeding.

FUNK, PJ, and STEVENS, J, concur in judgment.