Toledo & Ohio Cent. Ry. v. Licking Co.

24 Ohio C.C. Dec. 311

• Court: Ohio Circuit Courts
• Decided: October 15, 1912
• Status: Published

Opinion

PER CURIAM.

The petition in this case seeks to enjoin the commissioners; .from constructing a county ditch near or upon the right of way of 'the plaintiff company, and from collecting an assessment, levied by said commissioners against the plaintiff for the construction of said ditch.

The- grounds alleged in the petition upon which relief is; sought are that the plaintiff’s grounds have ample and sufficient, drainage without the construction of said ditch; that it would, be of no benefit whatever to the plaintiff to have such county-ditch constructed; that it has sufficient drainage upon-lower-lands adjoining its own, without the construction of any ditch, and also that the assessment made by the commissioners for the construction of said ditch was made according to the watershed, drained, and not according to the rule of benefits.

We think the petition recites a cause of action. It is held, in Blue v. Wentz, 54 Ohio St. 247 [43 N. E. Rep. 493]; that:

“Where the lands of an owner, by reason of their situation, are provided with sufficient natural drainage, they are not liable for the costs and expense of a ditch necessary for the drainage of other lands, simply for the reason, that the surface water-of his lands .naturally drain therefrom to and upon the lands, requiring artificial drainage.

“In making an assessment on lands benefited by'artificial, drainage, the extent of their water shed is not the proper rule,, but the amount of surface water for which artificial drainage/ is required to make them cultivable, and the benefits that will accrue to the lands from such drainage.”

We think that, under this authority, the petition, is sufficient, and that the demurrer to the same should be overruled. Exceptions may be noted. Leavé will be granted defendant to> answer within thirty days.