author: Spear, J.

text:
    Daily et al. v. State.

      Public highways — Shade trees — Rights of adjoining landowner — ■ Rights of telegraph companies in — Criminal liability jor injury to shade trees — Estoppel— When does not operate.

    1. An owner of land adjoining a public highway whose title extends to the center of the road, who has cultivated shade trees, planted partly on his own land and partly in the line of the highway within the bounds of his deed, has a property interest in such trees, and the right to their enjoyment subject only to the convenience of public travel.
    2. The legislature may authorize the construction of a telegraph line by a telegraph company upon a public highway, in such manner as not to incommode the public in the use of such highway, but authority so given does not empower such company to injure the property of an adjoining landowner, nor to appropriate any of his property rights in the highway except upon the condition that compensation be first made. Nor is warrant given to injure such property, nor to appropriate such property rights without compensation, by the act of congress of July 24, 1866, known as section 5263, et seq., of the Revised Statutes of the United States.
    3. The property right of such owner in trees thus cultivated by him, is a proper -subject of legislation for its protection. And one who, having knowledge of the rights of such landowner in the trees, proceeds, against the protest of such owner, heedlessly, recklessly and carelessly to injure them, may be prosecuted under section 6880 of the Revised Statutes, for a wrongful injury to property.
    4. The simple fact that the land owner did not, at the time the telegraph line was built, although aware of the purpose to build, object and prevent its construction by injunction proceedings, will not estop him, after the expiration of ten years from the date of such construction, from asserting his property interest in the highway and in the trees growing upon and in front of his premises.
    (Decided May 21, 1894.)
    Error to the Circuit Court of Portage county.
    At the September term, 1892, of the court of common pleas of Portage county, the plaintiffs in error, R. J. Dailey, William Donahue, Edward Lingle and S. W. Kennedy, were tried upon an indictment which charged that, on the 22d of September, 1892, they “wrongfully, unlawfully, and without lawful authority, did injure eight maple trees, the property of one E. E. Taylor, standing- and growing- upon land not that of said R. j. Dailey, William Donahue, Edward Lingle and S. W. Kennedy, nor of each, either, .nor of any of them, by cutting’ and severing- from said trees, and from each and all of them, certain limbs and branches belonging thereto, and by otherwise injuring and defacing each and all of said trees and the bark thereof, contrary to the form of the statute,” etc., etc.
    The record shows that E. E. Taylor.owned lands adjoining, and to the center of, a public highway. The road was about sixty-six feet in width, and had been established for over fifty years. His frontage was about one-third of a mile. The trees, some sixty in number, were planted by Mr. Taylor about forty years since, chiefly inside of the fence which was on the line of the highway. In the year 1882, a telegraph company, without obtaining consent of Mr. Taylor, or in any way appropriating a right to do so, erected its line upon the highway in front of his premises placing the poles from twelve to sixteen 'feet from the fence line. The poles were about 130 feet apart,- and on them were fastened cross-arms six feet in length, upon which were stretched fourteen wires.
    The defendants (now plaintiffs in error) were employes of The Postal Telegraph Cable company, and" acted under orders from the company in cutting the trees. At the time of the occurrence Mr. Taylor objected, telling the men that the trees were his as the owner of adjoining lands; that they had no right to cut them, and ordered them to desist. They replied that the branches interfered with the working of the line; that they had been directed to trim, and would do so. The trimming marred the symmetry of the trees, tended to make them one-sided, and injured them.
    The Postal Telegraph Cable company, which now operates the line, is a corporation organized under the laws of the state of New York, in the year 1886, having lines extending through many of the states, and into Canada. On March 17, 1886, the company filed with the postmaster general of the United States, its acceptance by resolution duly adopted, of the requirements of section 5263, and following, of the Revised Statutes of the United States, and of all the restrictions and obligations required by law, in order to make its line an instrument of inter-state commerce. When the company took possession of this line does. not appear.
    The defendants were found guilty. Sentence followed, which, upon error to the circuit court, was affirmed. To reverse these judgments the present proceeding in error is brought.

      Wolf & Moore, and I. T. Siddall, for plaintiffs in error.
    We insist that The Postal Telegraph Cable Company had a right on that road, had a right to construct, and had a right to maintain said telegraph line in a reasonable manner, and to clear away from it such things as would interfere with the successful use of the line, including branches of trees, etc., especially so when it was constructed on said road without the objection of the abutting landowner, and without interfering with or injuring any existing right or property at the time of construction, and when it had been maintained during so long a time without objection from said landowner.
    1. It had a right to occupy said road under authority given by the state of Ohio. Revised Statutes, sections 3454, 8035, 8227, 8228; Hargis v. Railway Company, 100 Mo., 210.
    2. It had a right to occupy said road under the authority given it by the federal government. Sections 5263, 5266, 5268 and 5269, Revised Statutes of the United States, second edition, 1878.
    See act of March 1, 1884, supplement to the Revised Statutes of the United States, vol. 1, second edition, 1874, 1891, page 423, 48th congress, first session in the year 1884.
    The power of congress embraces everything which directly relates to interstate or foreign commerce. Article T, section 8, parts 1, 3 and 7 of the United States Constitution; article VI, clause 2; Gloucester Ferry-Company v. Pennsylvania, 114 U. S., 196; Ratterman v. The Western Union Telegraph Company, 127 U. S., 411; County of Mobile v. Kimball, 102 U. S., 691; Wabash, St. Louis & Pacific Railway Company v. Illinois, 118 U. S., 557; Robbins v. Shelby County Taxing District, 120 U. S., 489; Bowman v. Chicago & Northwestern Railway, 125 U. S., 465; Leisy v. Hardin, 135 U. S., 100; Thompson on the Law of Electricity, page 11, section 9; Weller v. McCormick, 19, Atl. Reporter, Ex. parte Conway, 48 Federal Reporter, 77. 1101;

      S. F. Halselman, prosecuting attorney, for defendant in error.

      Under the provisions of our statutes it will be seen that the legislature has undertaken to authorize, and has authorized so far as lies in the power of the legislature, telegraph companies' to erect their lines along and upon the highways of this state, with a provision only that they shall so erect them as not to interfere with the public use of the street. This, so far as the statute is concerned, is the only limitation, and it bring’S us then squarely to the question as to what rig’hts the adjoining and abutting owners have in the streets and highways, and whether or not the legislature may authorize this erection in the public hig’hways of the state without regard to the rights of abutting owners, and without any provisions for- compensation. Smith v. Printing and Telegraph Company, 2 C. C. Rep., 259; 48 Ohio St., 390; 28 Ohio St., 502; vol. 86, O. L. 101; R. R. Co. v. Perkins, 49 Ohio St., 326; R. R. Co. v. O'Harra, 48 Ohio St., 343.
    Now we come to the question at issue, and that is, whether under this statute of the United States the defendant telegraph company gets any more rights than it has under the statutes of the state, or whether its rights are enlarged thereby. Upon this question see 96 U. S., 1; Thompson on The Law of Electricity, sections 17 and 18.
   Spear, J.

The conviction was had under section 6880, of the Revised Statutes, which provides that: "Whoever wrongfully, and without lawful authority, cuts down or destroys, or by girdling, or any other means, injures any vine, bush, shrub, sapling, or tree, standing or growing upon land not his own, or severs from the land of another, or injures, or destroys, any product standing or growing thereon, or other thing attached thereto, shall be fined in any sum not more than one hundred and fifty dollars, or imprisoned not more than thirty days, or both. ’ ’

Objection was made at the trial to the admission of any evidence under the indictment. • Exceptions were also taken to the refusal to charge divers propositions tendered by counsel for defendants. But the principal question in the case is raised by the exception to the following instruction given by the court to the jury, viz.:

“Upon the question as to the rights of the telegraph company, the court says to you that at the time of the erection of the poles and the construction of the telegraph line, whether in 1882 or 1884, the land upon which this highway was situated was the property of Mr. Taylor, subject to the right of way for public use for a highway; that is, for travel and keeping it in repair as a highway.
“As between Mr. Taylor and other individuals or corporations, it could be used for no other purpose without entitling him to compensation for such use; and the entry of this telegraph company upon his land without compensation to him, or without an agreement between him and such corporation, if you find this corporation did so enter, was not a rightful entry or occupancy; and as to the trees growing* upon this land at the time such company constructed its lines, as between him and such corporation he had the right to have the trees remain and grow there without injury, whether such injury was necessary or not to the use of the lines of such telegraph company. The United States could not, nor has it attempted to take away by any statute that right. Mr. Taylor’s right to maintain 'the trees in the ordinary way was an absolute right, and this right could be taken from him in no way until such time as they acquired the right to maintain such lines by prescription, which means actual occupancy for twenty-one years or more, or by appropriation or agreement; and for this company, by its agents, without first acquiring' the right, to enter upon this land and to cut the trees growing thereon, would be proceeding without lawful authority.”

If this instruction is wrong the conviction cannot stand.

It is maintained by the plaintiffs in error that the charge is erroneous because The Postal Telegraph Cable Company derived authority by force of section 3454, and following, of the Revised Statutes of Ohio, and of section 5263, and following, of the Revised Statutes of the United States (by which its line is made an instrument of interstate commerce), to enter upon and occupy the highway for its telegraph line, and was therefore rightfully there for the purposes of its business, and that as it appears that what was done by the employes of the company in the way of trimming the trees of Mr. Taylor was done to prevent the branches from interfering with the operation of the telegraph line, their acts could not be in violation of any right of Mr. Taylor, inasmuch as he could not be possessed of any right to intrude, by growing trees or otherwise, upon the right of occupancy and use thus acquired and enjoyed by the company. Such acts would not be, within the meaning of our criminal statute, wrongful, nor could the land, as respects the company thus rightfully in occupancy of the highway, be esteemed the land of another within the meaning’ of section 6880.

The sections of the Ohio statutes cited give authority to any magnetic telegraph company to construct telegraph lines from point to point along and upon any of the public roads and highways, etc., etc., but the same shall not incommode the public in the use of such highway. Any such company may enter upon any land, whether held by an individual or a corporation, and whether acquired by purchase or by appropriation, for the purpose of making preliminary examinations and surveys, with the view to the location of lines of magnetic telegraph, and may appropriate so much thereof as may be deemed necessary for the erection and maintenance of its poles, piers, abutments, wires, and other necessary fixtures, and for stations, and the right of way over such lands and adjacent lands sufficient to enable it to construct and repair its lines. But no such company shall, without the consent of the owner thereof in writing, enter any building or edifice, or. use or appropriate any part thereof, or erect any telegraph pole, pier ot abutment in any yard, or in any inclosure within which an edifice is situate, nor erect any telegraph pole, pier, abutment, wires, or other fixtures so near to any edifice as to occasion injury thereto, Or risk of injury in case such pole, pier or abutment be overthrown, nor injure or destroy any fruit or ornamental tree.

The sections of the United States statutes cited give to any telegraph company organized under the laws of any state the right to construct, maintain, and operate lines of telegraph over and along any of the military or post roads of the United States, but the lines must not interfere with the ordinary travel on such roads; and before any company can exercise any of the powers or privileges conferred, such company shall file its writtenacceptance with the postmaster general of the restrictions and obligations required by law. A later section declares: “That all public roads and highways, while kept up and maintained as such, are hereby declared to be post routes. ’ ’

It is apparent that the only limitation expressed upon the right to maintain lines of telegraph upon the public highways, is that they shall be so constructed as not to interfere with the public use of the highway. But the statute nowhere undertakes to deal with the private rig-ht of ownership in the highways, and the question arises whether it was the legislative purpose to g-ive rights to telegraph companies inconsistent with the rights of the owner of adjoining lands in the highways.

Whatever may be the rule in other states, we have supposed that the question of the rig-ht in the highway of a landowner whose title extends to the center of the road, is not an open one in Ohio. The question has been the subject of adjudication in a score of cases decided by this court, notably in the following: Bingham v. Doane, 9 Ohio, 167; Crawford v. Delaware, 7 Ohio St., 459; Street Railway v. Cumminsville, 14 Ohio St., 523; Hatch v. Railroad Co., 18 Ohio St., 123; McClelland v. Miller, 28 Ohio St., 502; Railroad Co. v. Williams, 35 Ohio St., 168; Railroad Co. v. O'Harra, 48 Ohio St., 343. Perhaps the principle is not better stated than in Railroad v. Williams, supra, opinion by Gilmore, C. J., as follows:
“As between the public and the owner of land upon which a common highway is established, it is settled that the public has a right to improve and use the public highway in the manner and for the purposes contemplated at the time it was establisted. The right to improve includes the power to grade, bridge, gravel, or plank the road in such a manner as to make it most convenient and safe for use by the public, for the purposes of travel and transportation in the customary manner, which is well understood to be by the locomotion of man and beast and by vehicles drawn by animals, without fixed tracks or rails to which such vehicles are confined when in motion. These constitute the easement which the public acquires by appropriating land for the right of way for a highway, and these, in legal contemplation, are what the owner is ,to receive compensation for when his land is appropriated for this purpose. The fee of the land remains in the owner; he is taxed upon it; and when the use or easement in the public ceases, it reverts to him free from incumbrance.
“In the exercise of the right of eminent domain, the state, through the general assembly, may delegate to a railroad corporation the power to appropriate a right of way for its road along and upon a public highway. * * * In such case, the rights of the public, and the rights of the owner, are entirely distinct; and the consent, expressed or implied, of one to the appropriation, would not bind or affect the rights of the other. * * * The railroad company, by occupying the highway, constructing its track, and operating its trains thereon by steam motive power, completely diverted the highway from the uses and purposes for which it was established. This new use, to which the highway has been diverted, imposes burdens on the land that are entirely different from, and in addition to, those that were imposed by the highway. The right to so divert the use, and impose additional burdens on the land, could only be aequired by the corporation by agreement with the owner, or by appropriating and making eompensasation therefor, in the mode prescribed by law. ’ ’

Applying the doctrine of this holding to the case at bar, it is manifest that the learned trial judge did not err in his charge bearing upon the property right of Mr. Taylor in the highway, but •that, on the contrary, the law upon that subject was correctly stated to the jury. And, if right upon that point, the result would seem to follow, as further charged by the judge, that the landowner “had the right to have the trees remain and grow there without injury, whether such injury was necessary or not to the use of the lines of such telegraph company. ’ ’ The rule of law rests upon the clear ground that the appropriation of the public highways for the purpose of telegraph lines was a new use. The highways were originally dedicated for the purposes of public travel, and not for the purpose of telegraph lines. Hence the new use imposed an additional burden. The statutes of Ohio grant to telegraph companies secondary and subordinate, rather than co-ordinate, rights, with travelers, which fact is apparent in the provision that the lines are to be so constructed as not to interfere with the public use of the highways. (Railway Co. v. Telegraph Association, 48 Ohio St., 390.) The presence in the statute of provision for the protection of private rights where lines are built on private lands, and the absence of such provision where the highways are used, is strong indication, as it seems to us, that the purpose was to avoid any interference with the rights of the adjoining land owners. And the conclusion seems inevitable, taking the language of the entire statute upon the subject, that, whatever grant oi right in the highways is given telegraph companies as against the public, no right is attempted to be given them as against individuals. The question of legislative power, therefore, to authorize a telegraph company to take the interest of the adjoining landowner in the highway withoht compensation, need not be considered.

It follows that before the telegraph company could possess a right in such measure as to interfere with the right of the landowner in the highway it would be required to acquire that right in some one of the ways known to the law. It is not pretended that any such method has been resorted to. Hence, the entry upon the land by the company, was, as to such right, not a rightful entry. There was no error, therefore, in the trial judge giving the instruction upon that subject already quoted.

The court also said to the jury “that in doing these acts, if these men in good faith honestly thought from the circumstances that they had the right to cut the trees as they' did, they could not within the meaning of the law be held to be guilty of a crime in this ease, even though they had no right or lawful authority so to do; however, if you find they acted heedlessly, recklessly and carelessly, without honestly believing they had the right to do it, then as to this branch of the case they would be liable. ” And this is assigned as error, because, as is urged, if the defendants honestly, though mistakenly, believed they had a right to cut the trees, the question of recklessness would not enter into the consideration, and they could not be guilty. We see no error in this instruction to the jury. Indeed, it is probably more favorable to the defendants than they could well ask. If, with the information from Mr. Taylor, as to his ownership of the land and of the trees, and in the face of his protest, they chose to go on and do the injury complained of, it was for the jury to say whether or not they acted “heedlessly, recklessly and carelessly,” and if they did so act, then the cutting was “wrongful,” within the meaning of the statutes. That the cutting, if it injured the trees, would inflict pecuniary injury on Mr. Taylor, was apparent on the face of things. The trees were of value to the enjoyment of the property. Not only as a matter of sentiment on the part of the owner who had planted them and had watched their growth for near half a century, but as an improvement which added money value to the farm, had Mr. Taylor an interest in preserving them from injury, and in invoking the aid of the criminal law, where the superior force of the telegraph company made it impracticable for him to personally protect his own. That, too, was the time for him to stand for his own. The right in the company, if it existed, to set poles as near as one hundred and thirty feet from one another, with cross-arms six feet in length, and to put upon them fourteen wires, implied the right to place the poles as near together as the company might desire, and to put on them cross-arms of any length, and string a corresponding number of wires. And if there was the right to cut branches where necessary to the working of the line, there would arise an equal right to cut down the trees themselves in case a like necessity appeared. The landowner made resistance so soon as his property rights were directly assailed, but he did not resist any too soon.

It is contended that the claim of the telegraph company to lawful possession as an instrument of inter-state commerce is sustained by the holding of the Supreme Court in The Pensacola Tel. Co. v. The W. U. T. Co., 96 U. S., 1. In that case it is held that the powers conferred upon congress to regulate commerce among the several states, and to establish postoffices and post roads, are not confined to the instrumentalities of commerce, or of the postal service known, or in use when the constitution was adopted, but keep pace with the progress of the country, and were intended for the government of the business to which they relate at all times and under all circumstances, and it is the duty of congress to take care that intercourse among the states and the transmission of intelligence are not obstructed or unnecessarily incumbered by state legislation. And, further, that the act of July 24, 1866 (section 5263, et seq.), which declares that the erection of telegraph lines shall, as against state interference, be free to all who accept its terms and conditions, and that a telegraah company of one state, shall not, after accepting them, be excluded by another state from prosecuting its business within her jusisdiction, is a legitimate regulation of commercial intercourse among the states, and is not limited in its operation to such military and post roads as are upon the public domain. And, as conclusion, that the statute of Florida, so far as it grants to the Pensacola company, the exclusive right of establishing and maintaining lines of electric telegraph as therein specified, is in conflict with that act, and therefore inoperative as against a corporation of another state entitled to the privileges which that act confers; and, further that a telegraph company of another state, which has secured the right of way by private arrangement with the owner of the land, and duly accepted the restrictions and obligations required by that act, cannot be excluded by the Pensacola company.

But this is very far from holding that a telegraph company which accepts the terms of the United States statute, thereby acquires any right as against the individual property right of the citizen. True, the holding is that the telegraph is an instrument of inter-state commerce; that telegraph companies, are subject to the regulating-powers of congress, in respect to their foreign and inter-state business, and that such a company occupies the same relation to commerce as a carrier of messag-es, that a railroad company does as a carrier of goods. But how does this advance the argument? It is made plain, we think, by what has preceded, that the state cannot grant to a railroad company any right in a public highway which invades the individual right of the owner of adjoining land; such right may be acquired by due process of law; it cannot be legally seized by brute force. It is to be noted, also, that the Western Union company whose right is vindicated by the decision cited, “had secured a right of way by private arrangement with the owner of the land,” and hence the property rights of the citizen were in no way involved in the case. So solicitous, however, was the eminent jurist who wrote the opinion (Chief Justice Waite) that no unwarranted impression should be created, that he took pains to guard against it, when speaking of the statute, by use of the following language: “It gives no foreign corporation the right to enter upon private property without the consent of the owner and erect the necessary structures for its business; but it does provide, that, whenever the consent of the owner is obtained, no state legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges.” * * “No question arises as to' the authority of congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the constitution is not interfered with. Only national privileges are granted.”

It is manifest that the case is not an authority supporting the contention of the plaintiff in error.

Beyond this it is urged that, by not resisting the erection of the poles and the stringing of the wires when the line was placed along the highway some ten years before, Mr. Taylor is, in some way, estopped from now asserting his private rights, and hence it could not be made a criminal offense to invade those rights. Goodin v. Canal Co., 18 Ohio St., 169, is cited in support of this contention. The doctrine of the Goodin case was held in Railroad Co. v. Robbins, 35 Ohio St., 483, to ‘'rest upon its own peculiar facts, and is not to be extended,” and in the recent case of Railroad Co. v. Perkins, 49 Ohio St., 331, it is again observed, respecting the same case, that: “What is there said, must he confined to the facts of that case.” If, however, the doctrine of the Goodin case be at all applicable to the facts of the case at bar, it ■would, only prevent a proceeding on the part of the landowner to compel a removal of the line. It could not work a transfer of the right of the landowner in the road to the telegraph company. That result, by reason of mere acquiescence, could not be accomplished short of twenty-one years. The private right, therefore, would not be extinguished. And, if not extinguished, that property right was still susceptible of protection by the criminal law. But, aside from this, even if the GoocLin case applies here, why should the landowner be estopped? The holding in the Goodin case proceeds upon the theory that the owners must have been fully aware of the appropriation proceedings, and that their property was being seized and despoiled, and upon the additional fact that large sums had been expended on the faith of their apparent acquiescence. In the case at bar it is not shown that at the time of the erection of the telegraph line the danger of interference with, or injury to, private property, was apparent, nor that expense has been incurred relying upon apparent acquiescence, nor, indeed, that any large sum has been expended at all.

Our conclusion is that the owner of the adjoining land was the owner of the trees, and had the rig'ht to their full enjoyment subject only to the convenience of public travel; that his property in the trees was a legitimate subject of protection by state legislation, and that the criminal arm of the law was properly invoked for his protection.

Other questions are argued, but we find none presented by the record of sufficient gravity to justify the use of time and the space in their discussion.

Jxidgment affi/rmed.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Groesbeck v. Cincinnati et al.

      Street assessments — Illegal—Payment—Recovery—Stahite of limitations.

    An ordinance of a cit}’, assessing on the property abutting on a street more than is required to pay the cost of the improvement of the street, is, as to the excess of the assessment over the cost of the improvement, illegal; and, having been paid by the property owner,, an action to recover back such excess, under section 5848, Revised Statutes, must be commenced within one year after such payment. The fact that the passage of the ordinance was induced by a mistake in the calculation of the cost of the improvement, and that payment was made in ignorance of such mistake, will not have the effect to save the action from the limitation provided for in said section.
    (Decided May 22, 1894.)
    Error to the General Term of the Superior Court of Cincinnati.
    This action was commenced on the 27th day of May, 1892. The amended petition filed in the case is as follows:
    “The plaintiff says that he is, and for a long time prioi to the commencement of the proceedings by the defendant, the óity of Cincinnati, for the improvement of Clifton avenue, has been the owner of lots and lands in the_ subdivision of the estate of the late Col. John Riddle, deceased, fronting 1,572.89 feet upon the west side of Clifton avenue, in the city of Cincinnati.
    “,The plaintiff further says that on the 12th day of February, 1887, the defendant, the city of Cincinnati, being a municipal corporation, and owning and having control of Clifton avenue, a public highway, one mile in length and one hundred fefet in width, extending. from the north corporation line of said city, south of McMillan street, had, in accordance with the laws and ordinances, established a g-rade to said avenue, adopted a resolution declaring it necessary to improve said avenue, and ordered the same to be improved by grading, setting curbs, paving gutters, macadamizing the roadway and draining the same, and declared that the cost and expense of the same should be assessed against the abutting property in proportion to the feet front, and entered into a contract with one Charles N. Danenhower, on said 12th day of February, 1887, to do said work. Said work was reported to be completed: and on the 5th day of January, 1889, the cost and expense thereof was, by-a special ordinance then passed by: the defendant, the city of Cincinnati, assessed against the abutting property at'- the rate of $9.766385 per front foot, and all the property owners abutting said avenue were required to pay said assessment in cash within twenty days, and declaring that in default thereof said assessment should be a lien upon the abutting real estate, and could only be paid in installments of one-tenth per year for the period of ten years, with five per cent, interest annually upon said installments until the same should be paid.
    “And thereupon the plaintiff, relying upon the integrity and fidelity of the agents of the defendant, the city of Cincinnati, to correctly estimate the quantities of work done and to compute the same, and relying upon the certification of the completion of said work, did, on the 29th day of January, 1889, pay to the defendant, E. O. Eshelby, as city comptroller of the defendant, the city of Cincinnati, the amount so computed by said city’s agents, to be due to the defendant, the city of Cincinnati, to wit:
    “The sum of $15,361.45, being at the rate of $9.766385 per front foot, for the whole number (1,572.89) of front feet of lots and lands abutting said avenue owned by the plaintiff.
    “The plaintiff further says that on or about the -day of-•, 1892, he learned that said work was not completed on the 5th day of January, 1889, and was not completed until the 1st day of January, 1890, and that the amount of work as estimated by the agents of the defendant, the city of Cincinnati, and paid by this, plaintiff through a mistake of fact was- not performed.
    “The plaintiff says that the agents of the defendant, the citjr of Cincinnati, in the final estimate allowed the contractor for grading or excavating............................................................196,342 cubic yards.
    When in fact he only graded or excavated.....................................172,973 cubic yards.
    Making an excess in quantify of................................................................23,369 cubic yards.
    The contract price for which was twenty-four cents per yard, making’ an overcharge against the property owners abutting said avenue for grading of..... $5,683 56
    Also an excessive amount of coarse macadam of 791 cubic yards at $1.19.... 941 29
    Also an excessive amount of fine macadam of 383 cubic yards at $1.75............... 670 25
    Making an overcharge against said property owners upon macadam of...................... 1,611 54
    And that said agents also made an overcharge against said property owners above the original contract the amount of........................................................................................... 474 80
    Making a total overcharge against said property owners for work not done or performed of................................................................. 7,774 90
    “The plaintiff says the whole number of feet abutting said improvement is 10,372.74 feet, and that said overcharge amounts to $0.749604 per front foot, against each and every foot abutting said improvement, and that the same was occasioned by the agents of the city of Cincinnati, erroneously computing the cost and expense of said improvement under said contract, upon quantities of work and materials larger than in fact was done and furnished in the amount as above set forth.
    “The plaintiff further says that at the time he made said payment he had no knowledge of said erroneous computation, that he had no opportunity to learn of it, that if he had known that he was overcharged he would not have paid the bill for said work.
    “The plaintiff says the amount he overpaid through a mistake of facts is $0.749604 upon 1,572.89-feet, and amounts to $1,179.04, with interest from January 29, 1889, no part of which has ever been paid back to plaintiff, although often requested.
    “The plaintiff further says that he makes no objection to said improvement; and his only claim is that the quantity and amount of work charged for was not done, and his said payment was made under a mistake of the facts without fault on his part, and he asks to have returned to him the amount so overpaid with interest from the date of payment.
    ■ “Wherefore the plaintiff prays that summons may issue to both of said defendants, and that they may be required to answer the same, and for judgment for $1,179.04, with interest from January 29, 1889, for money had and received, and for all equitable and proper relief.”
    To this amended petition the defendants, the city of Cincinnati and D. W. Brown, city auditor, filed a general demurrer, which was overruled by the special term of the superior court of Cincinnati, and judgment rendered in favor of the plaintiff. A petition in error was filed in the general term by the defendants below, and the judgment of the special term was reversed and judgment rendered against plaintiff below.
    On motion, leave was granted to plaintiff to file a petition in error in this court seeking to reverse the judgment of the general term.

      Miller & Renner, for plaintiff in error.
    An “error in calculation” is always a mistake of fact and never a mistake of law, and that an “illegal assessment” is always a mistake of law and never a mistake of fact. Pelton v. Bemis, 44 Ohio St., 51; Whitbeck v. Minch, 48 Ohio St., 210; Wilson v. Pelton, 40 Ohio St., 306; Devine v. Edwards, 101 Ill., 140; 87 N. Y., 452; 15 Am. & Eng. Enc. of Law, 634, 645; Thompson v. Doty, 72 Ind., 338; Renard v. Fiedler, 3 Duer, fifth line from bottom of page 323.
    The recovery back of money paid through mistake of fact is one of the original heads of equity. It is founded on the principle that there is no consideration to sustain such payment, and this right is as fully recognized and established as any right in equity, as much so as any right arising by reason of the fraud of the opposite party. Strusburg v. Mayor, 87 N. Y., 456.
    The plaintiff has brought an action for an injurv to his rights not arising on contract, and not otherwise enumerated in the statutes of limitations, and it will not be barred in less than four years under section 4982, Revised Statutes. Pomeroy’s Equity (2d edition) sections 363, 364, 365, 377, 854, 981; 18 Am. and Eng. Enc. of Law, 225, 226, 227, 228; Wooley v. Staley, 39 Ohio St., 354.

      Theodore Horstman, corporation counsel, for defendants in error.
    The question as to whether the payment was voluntary or involuntary, or whether there was any consideration for the same, do not, it appears to us, arise in chis case. Reliance is placed entirely upon the construction of the statute.
    Counsel endeavors to show that the assessment in the present case is not an ‘ ‘ illegal assessment ’ ’ within the meaning of the statute. But is it not a play upon words to say that the word “illegal” in the statute applies to only one class of assessments and not to another? The statute, we claim, makes no distinction and goes so far as to provide that action can be brought to recover back such assessments as have been collected, without regard to the amount thereof.
    Before its enactment there was no adequate remedy for the property holder in a case of this kind, for if the assessment duplicate was regular upon its face, but illegal by reason of some act or omission of the assessing officer or board, the remedy must be against the officer or board committing the error, so that the officer making the collection could not be held liable. Stephen, Treas., etc., v. Daniels et al., 27 Ohio St., 535; Tone v. Columbus, 39 Ohio St., 301; Trimmer v. Rochester, 134 N. Y., 76; City of Covington v. Voskotter, 80 Ky., 219; City of Covington v. Hoadley, 83 Ky., 444.
    There is .another aspect in which this case may be viewed independent of the statute of limitations. If the payment was made under a mistake of facts, the plaintiff should have exercised reasonable diligence to ascertain those facts. Pomeroy’s Equity Jur. (2d Ed.), section 856; Story’s Eq. Jur., section 146 (Redfield’s Ed.).
    If the court should find that this was a payment made under a mistake of law, the late decision of this court in the case of Whitbeck, Treas., v. Minch, 48 Ohio St., 210, would be conclusive.
   Burket, J.

The amended petition filed in this case shows that on the 5th day of January, 1889, the city of Cincinnati passed a special ordinance whereby it assessed against the property abutting on Clifton avenue, in said city, the sum of $9.766385 for each front foot of lots on said avenue, to raise money to pay for improvements theretofore made on the avenue. Plaintiff owned 1,572.89 feet of property on the avenue, and the amount assessed against his property by said ordinance was the sum of $15,361.45, which sum he paid to the city on the 29th day of January, 1889, in payment of the assessment so made by the ordinance on his property. Afterward, in the year 1892, plaintiff learned that in the final estimate made by the agents of the city, and upon which the ordinance was based, a mistake was made whereby, there was assessed on his property in excess of what the improvement cost, the sum of $1,179.04; that mistake was occasioned by the agents of the city erroneously computing the cost and expense of the improvement under the contract upon quantities of work and material larger than in fact were done and furnished; that plaintiff at the time of payment did not know of this error in computation; that he had no means of learning of the error sooner, and that had he known of the overcharge, he would not have made payment. To avoid the one year statute of limitations, he avers that as to the excess of $1,179.04, it was a payment under mistake of fact, and he relies upon the case of Woolley v. Staley, 39 Ohio St., 354.

In that case, the commissioners had employed a person to look after omitted taxes, and the person so employed informed Mr. Woolley that he- was liable to pay a certain sum as omitted taxes on certain property owned by him, and the auditor of the county confirmed this information, and Mr. Woolley believed it to be true; and upon certificate of the auditor he paid the amount of the alleged omitted taxes to the treasurer and took his receipt therefor, but the tax was never assessed against him in any manner by any officer. Afterward, Mr. Woolley ascertained that his property was not liable for any omitted tax, and that he had paid the money by mistake of fact, and he brought his action to recover it back. He was permitted to recover on the ground that the money paid was not in payment of a tax, but was money paid by mistake of fact.

The court in disposing’ of that case, say on page 359.: “It was not a tax. It was never levied by any authority. It was never assessed, legally or illegally, upon any property or against any person. It was never charged upon any duplicate, either originally or by the auditor in the way of correction. It had no semblance of a tax, which may be so paid by the voluntary act of the party as will prevent him from recovering it back. ’ ’

The ease now under consideration is very different from the above. Here the assessment was levied by the ordinance on the plaintiff’s property, and was so charged on the books of the auditor, of .ah which plaintiff had notice, and acting upon his knowledge, he paid the full amount of the assessment to the city, and the city received the money in payment of such assessment. And it is conceded that, to the extent of the cost of the improvement, the money paid was in payment of the assessment, but it is claimed that the excess of $1,179.04, while it was included in the payment so made, and was regarded by all parties as money paid on an assessment, ceased, by some mysterious transformation, as soon as the error was discovered, to be money paid on an assessment, and became money paid by mistake of fact.

That a mistake was made, and that such mistake induced the passage of the ordinance, clearly appears from the amended petition. Still the fact that a mistake is made in an assessment proceeding does not change the character of the matter from an assessment to a mistake. The assessment remains the principal, and the mistake is only an incident. There may be a mistake in an assessment as well as in any other transaction, but the fact of such mistake does not change the character of the transaction, nor the form of the recovery. It is still an assessment, and the rights • of the parties must be worked out according to the law applicable to assessments.

The fact that the amended petition does not cab this excess an illeg’al assessment, counts for nothing in a court of justice. A court will look through the form of words to the substance, the real transaction, and not stumble at a name, nor for the want thereof.

It is therefore clear that the money sought to be recovered back is money paid on ■ an assessment, and that this action is brought under section 5848 of the Revised Statutes.

This statute does not interfere with the rights and remedies which existed in such cases before its passage in 1856, but it gives new remedies both at law and in equity. A full review of the cases in this state as to the rights and remedies, in illegal tax and assessment cases, both before and since the passage of this statute, is found in the case of Stephen v. Daniels, 27 Ohio St., 527, to which reference is made.

While the fact that plaintiff did not know of the error, and would not have paid the assessment if he had known thereof, appeals strongly to our sense of justice in his behalf, yet the fact remains that the law under which he invokes the aid of the court has limited his right of action to one year from the time of payment, and not from the time of the discovery of the error. He must accept the statute as a whole, including its disabilities and limitations.

It is also urged by counsel for plaintiff, that this is not an illegal assessment in the sense in which that term is used in the statute, that an error in calculation is not such an illegality as the statute contemplates, and that for these reasons the case should be governed by the law of mistake, rather than by the law of assessments.

Section 5848 is as follows: “Courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of taxes and assessments, or the collection of either, and of actions to recover back such taxes or assessments as have been collected, without regard to the amount thereof, but no recovery shall be had unless the action be brought within one year after the taxes or assessments are collected.”

Had plaintiff refused to pay the assessment, he certainly could have enjoined the collection of so much thereof under this section as was in excess of the cost of the improvement, on the ground that such excess was illegal; and if illegal for the purpose of injunction, it was equally illegal for the purpose of recovering back such excess.

The term “illegal,” as used in this statute, is the opposite of the word “legal.” Every assessment is either legal or illegal. All assessments which are so far valid that their collection can be enforced by legal process, are legal, and all others are illegal, whatever the cause of their invalidity.

In the case at bar, the illegality of the assess-. ment is found in the assessing ordinance, and arises from the lack of power in the city to pass an ordinance assessing on the property more than the cost of the improvement. As to the excess over the cost of the improvement the ordinance imposes a burden in the nature of a tax or assessment not warranted by law, and opposed to the system of taxation provided in the constitution. The ordinance, therefore, as to this excess, is clearly unconstitutional, not warranted by law, and to the extent of such excess the assessment is illegal. True, the ordinance was induced by the error in calculation, but it was not the calculation which imposed the assessment, but the ordinance. The character of the transaction must be determined by that step which caused the injury and imposed the burden. The calculation, even though erroneous, would have imposed no burden on plaintiff’s property had it not been followed by the ordinance. It was therefore the ordinance that caused the injury and imposed the burden, and to the extent that it exceeded the cost of the improvement, it went beyond the power of the city, and it was to that extent illegal. If the assessment was legal, the demurrer was properly sustained, because plaintiff has no right to recover back a legal assessment. If the assessment was illegal, the demurrer was still properly sustained, because the action was not commenced until more than one year after payment of the assessment. So that whether the assessment was legal or illegal, the demurrer ought to have been sustained, and the judgment of the general term in favor of defendants is right.

Judgment affirmed.


author: Williams, J.

text:
    Gashe v. Young.
    Agent— When becomes trustee — Resulting trusts — Preferring creditors— When becomes assignment in trust.

    1. An agent wlio acquires property for a consideration furnished by his principal, and takes the title in his own name, holds it as trustee for the principal; and, in general, when the title to property purchased is taken to one or more persons, and the consideration, or an aliquot part thereof, is paid by another, a trust results in favor of the latter.
    2. Where a debtor executes a conveyance of his real estate, or an assignment of his personal property to certain of his creditors and the agent of another jointly, in consideration that his- indebtedness to those creditors shall be canceled, a trust arises in favor of the creditor to whose agent the conveyance or assignment is made; and when it is so made, in contemplation of insolvency, and with the intent to prefer such creditors to the exclusion of others, it constitutes an assignment in trust to trustees, within the purview of section 6343, of the Revised Statutes, and by virtue of that section inures to the equal benefit of all the creditors, in proportion to the amount of their respective claims.
    (Decided May 22, 1894.)
    Error to the circuit court of Lucas county.
    The original action was brought in the court, of common pleas of Lucas county, by William A. Gashe, against Charles L. Young and George W. Miller, who had been partners doing business in the firm name of Young & Miller, and John S. Eck, John W. Hughes, John E. Potts, and B. Ellis Bullock. The petition alleges that on the 23d day of April, 1889, Young & Miller, in contemplation of insolvency, and with the intent to hinder, delay and defraud the plaintiff, who was then their creditor, assigned and transferred all of their personal property, and conveyed all of their real estate to their co-defendants, in trust, to pay certain alleged indebtedness of Young & Miller to the J. E. Potts Salt and Lumber company, and some other specified creditors, with the design to give them preference over the plaintiff, and other creditors. The prayer of the petition is, that the transfer and conveyance of the property so made be adjudged to inure to the equal benefit of all the creditors of Young & Miller, and administered accordingly.
    An answer was filed by Eck, Hughes and Potts, which denies that the property was transferred and conveyed to them with intent to hinder, delay or defraud the plaintiff, or any other creditor of Young & Miller, or in trust for any purpose whatever, and avers that the defendants purchased the property ‘ ‘for a good consideration, equal in value to that of said property, and thereby acquired the absolute title to, and interest therein, free from any trust, and with no agreement or liability to account therefor.”
    The plaintiff prevailed in the court of common pleas, and the cause was taken, on appeal, to the circuit court, which made a finding of the facts as follows:
    “That on the 22d day of April, 1889, and for a long time prior thereto, Charles L. Young and George A. Miller were partners, doing a general lumber business in the city of Toledo, Lucas county, Ohio, under the firm name of Young & Miller, and that they were, on and prior to said date, the owners of a large stock of lumber, notes, accounts, horses and wagons, used in carrying on said lumber business, and other property, consisting of seven (7) shares of stock in a corporation known as the Acmetonia Tanning Company, 100 shares of stock in a corporation known as the Automatic Car Heating-Company, together with a small amount of real estate, all of the value of about forty thousand dollars.
    “That said Young & Miller were on the said22d day of April, 1889, insolvent, and that the debts owing by said firm largely exceeded the value of their property, real and personal.
    “That at said time Young and Miller were indebted to the defendant, John W. Hughes, in the sum of about nine thousand dollars ($9,000), to John S. Eck in the sum of about eight thousand dollars ($8,000), and to the J. E. Potts Salt and Lumber Company, a corporation organized and ex-i sting under the laws of the state of Michigan, in the amount of more than seventy thousand dollars ($70,000).
    “That the indebtedness to the J. E. Potts Salt & Lumber Company was largely for lumber, which had been sold by the company to the firm of Young and Miller, and for which the promissory notes of the firm had been given to the said company.
    “At the date of the transfer hereinafter mentioned, the defendant, John E. Potts, was a director of the corporation above mentioned, and its general manager.
    “Young & Miller were also indebted to the plaintiff, Gashe, in the sum of eighteen hundred forty-five and seventy-two one hundredth dollars ($1,-845.72), and they were also indebted to the other cross-petitioners, who filed cross-petitions in said cause (after due publication of notice as provided in section 6344, Revised Statutes), in the following amounts:
    “To William A. Gashe and Frank Redding in the sum of $474.75.
    “To Frank Redding in the sum of $421.62.
    “To Dolsen, Chapin & Co. in the sum of $1,430.61.
    “To Tousey & Turner in the sum of $640.30.
    “To D. EL Trombley in the sum of $624.15.
    “To J. E. & D. E. Bailey in the sum of $970.11.
    “The Toledo Consolidated Railway Company in the sum of $128.17.
    “To James W. Myers, as sureties of Gashe & Redding, $1,353.49, and
    “To John T. Kerruish in the sum of $1,222.04.
    “The firm of Young & Miller were also, at the time of said transfer, indebted to the Merchants’ National bank, of the City of Toledo, to the extent of several thousand dollars, to one Eleanor Young-in the sum of one hundred and sixty dollars ($160.00), and to one J. C. Miller in the sum of $564.00.
    “On the 22d day of April, John E. Potts (who lived at Detroit, Michigan), Eck, Hughes, and Young- & Miller, met in a building known as Memorial hall, and talked over the situation, with a view of the adjustment of the claims of the first mentioned parties, Potts, however, representing and acting for the J. E. Potts Salt & Lumber Company.
    “It was at first proposed by Young that a stock company of some kind be formed, and that the claims of the three creditors present be contributed as part of the stock; that Young & Miller should put in the firm property, and that the business should proceed in that way.
    “ This proposition was rejected by said Potts, then acting- for the said J. E.' Potts Salt & Lumber Company as aforesaid, and by said John S. Eck and John W. Hughes, and thereupon at the instance of the last named parties an arrang-ement and agreement was then and there made by and between said parties, by the terms of which said Young & Miller sold to the said John E. Potts Salt & Lumber Company, John S. Eck and John W. Hughes jointly, the property mentioned in certain schedules numbered one (1), two (2), and three (3), which property embraced substantially all the property of said Young & Miller, both real and personal, iucluding- the stock of lumber, horses, wagons, stocks and real estate, together with other property belonging to the members of the firm as individuals.

      ‘ ‘As a consideration for the foregoing sale and transfer, the said John E. Potts, acting for and on behalf of the said John E. Potts Salt & Lumber Company, and being thereunto duly authorized by said Company, agreed that the said indebtedness of Young & Miller to the said J. E. Potts Salt & Lumber Company should be canceled, the said John W. Hughes agreed that the indebtedness to himself should be canceled: and the said John S. Eck made the same agreement with respect to the amount due him from said Young & Miller.
    “The said Potts, Hughes and Eck, said Potts acting as aforesaid, further agreed to pay the said Merchants’ National Bank to apply on the indebtedness of Young & Miller, the sum of seven thousand dollars ($7,000): . To defendant B. Ellis Bullock, the sum of one thousand dollars ($1,000), a certain note of four hundred dollars ($400), which had been heretofore indorsed by said John S. Eck, and a note of one J. C. Miller, for the sum of $564.
    “Promissory notes were given to the bank and to Bullock for said amounts, signed by Potts, Hughes and Eck, due in oné year; and said notes were thereafter paid and taken up by the firm of John W. Hughes & Co., constituted as hereinafter mentioned.
    “That said transfer of said property was made in writing, at the date of said agreement, on the back of three separate schedules containing a detailed description to said property.
    “On the back of the first schedule, which was known as No. 1, and which contained an itemized description and inventory of the stock of lumber, horses and wagons, and other personal property used in carrying on said lumber business, said transfer was in the words and figures following: '

      “Toledo, Ohio, April 22, 1889.

    “For value received, we hereby sell, transfer and turn over to J. E. Potts, J. S. Eck and John W. Hughes, all and singular, the lumber, chattels and property described in the foregoing schedule.
    “Young & Miller.
    “On schedule known as No. 2, which was a schedule and inventory of the bills and accounts receivable, said transfer was as follows: ■
    “Toledo, Ohio, April 22, 1889.

    “For value received, we hereby sell, and assign to J. E. Potts, J. S. Eck and John W. Hughes, all our right, title and interest in and to the accounts nlentioned in the foregoing schedule,' except the account against W.. H. Hartman for $1,084.34, which we sell and assign to B. E. Bullock.
    “Young & Miller.
    ^ “On schedule No. 3, which was a schedule and description of the real estate belonging to George A. Miller, and of Young & Miller, and which schedule contained also a statement and description of the shares of stock above mentioned, the following words and figures appear:
    “For value received, I agree to execute and dedeliver to J. E. Potts, J. S. Eck and J. W. Hughes, deeds for the real estate herein described as lot 4, Calkins’ addition, and lot 2, block 29, Segur’s addition to Toledo, subject to incumbrances thereon, and upon the further payment of the above named parties of one note $400, endorsed by John S. Eck, and the notes of J. C. Miller, aggregating $564, total, $964.
    “George A. Miller.

      “For value received, we hereby agree to convey by deed to J. E. Potts, J. S. Eck and J. W. Hughes, lot 460, Glassboro addition to Toledo, O.
    “Young & Miller.
    “For value received, we agree to pay a note of about $160.00, given by Eleanor Young and endorsed by Young & Miller, due about April 29, 1889, held by Keeler, Holcomb & Co., bankers.
    “J. W. Hughes & Co.
    “ That subsequently deeds were made and executed by George A. Miller, and Young & Miller to said John E. Potts, John S. Eck and John W. Hughes, conveying to them said above described real estate, and the notes above mentioned, amounting to $964.00, were taken up by Potts, Hughes and Eck, and surrendered to Young & Miller.
    “Nogeneral assignment for the benefit of creditors was at any time made by said Young & Miller, nor by either of the members of said firm. And in all the transactions in this finding of facts set forth, so far as the said John E. Potts appears to have acted therein, he acted for and in behalf of the said. J. E. Potts Salt & Lumber Company, and by its authority, and not for himself; and all such acts and transactions were in fact the transactions of said Salt and Lumber .Company.
    “That said sale was made and consummated as aforesaid, in good faith, and with the intent and for the purpose of paying and satisfying the indebtedness of the said Young & Miller to said purchasers, and while the same operated as a preference to said creditors, no actual fraud entered into the transaction, nor was intended by either .of the parties thereto.
    ‘ ‘ It was agreed between Potts, acting’ as aforesaid, Hughes and Eck, at the time of the transfer of said property or immediately prior thereto, that a partnership should be formed, consisting- of said Potts, Eck and Hughes, for the purpose of disposing of the property obtained by them of Young & Miller as aforesaid, said partnership to transact the business under the name of J. W. Hughes & Co.
    “The said Young & Miller were in no manner connected with said arrangement, nor did they participate in the discussions relating thereto. Potts acting as aforesaid, and Hughes' and Eck at once took possession of the property so sold and transferred, began collecting the accounts, replenished the stock of dumber by adding’ largely to the same, and in fact engaged in the conduct of a general lumber business.
    “It was agreed between Potts, Eck & Hughes at the time of the transfer, that out of the proceeds of the sale of the property obtained from Young & Miller, the indebtedness of Young & Miller to John W. Hughes and John S. Eck should first be paid in full, and that the remainder arising from such sale should be paid to John E. Potts as the agent and general manager of the J. E. Potts Salt & Lumber Company. The said Young & Miller were in no manner parties to this agreement.
    “At the time of said transfer, the notes which had been given by Young & Miller to the J. E. Potts 'Salt & Lumber Company were outstanding in the hands of parties to whom they had been transferred by the company, and as said notes became due they were taken up by said J. W. Hughes
      & CompanjT' with funds furnished and provided by the J. E. Potts Salt & Lumber Company for that purpose, and after being taken up in the manner described, they were returned by said J. W. Hughes & Company to the Salt & Lumber Company, and have since been in its possession.
    “That the plaintiff, William A. Gashe, on the first day of May, 1889, recovered a judgment against defendants, Young & Miller, as in said petition set forth, upon which judgment, execution was issued and returned unsatisfied for want of property on which to levy as therein alleged; and that on the 22d day of April, 1889, said plaintiff being at the time a creditor of the said Young & Miller, the said Young & Miller then being insolvent, and having no other property real or personal, with which to pay their debts, or any part thereof, but acting in good faith, and for the sole purpose of satisfying and canceling the said indebtedness due to the said John W. Hughes, John S. Eck and the J. E. Potts Salt & Lumber Company, sold, transferred and conveyed to them the property in plaintiff’s petition set forth and described; the naked legal title, in so far as the said J. E.. Potts Salt & Lumber Company is concerned, being taken to said John E. Potts, its duly authorized agent in that behalf, and general manager.
    “While said transfer operated to prefer said creditors, no fraudulent preference was intended, nor did any actual fraud enter into the transaction.”
    Upon the facts so found, the court held that Hughes, Eck and Potts did not become trustee^, and rendered judgment against the plaintiff, who prosecutes error here to reverse that judgment.

      J. H. Southard and G. W. Kinney, for plaintiff in error.
    The sole question under the finding of facts in this case is, was the assignment by Young & Miller of their property to Eck, Potts & Hughes made in trust to a trustee or trustees, in contemplation of insolvency, with intent to prefer one or more of their creditors. We claim that it was, and that it comes within the provisions of section 6343 of the Revised Statutes of Ohio. Dickson et al. v. Rawson et al., 5 Ohio St., 223; Bagaley v. Waters, 7 Ohio St., 360.

      Henry S. Bunker, for defendants in error.
    Clearly from the finding of facts this is not a case that comes within the provisions of either sections 6343 or 6344 of the Revised Statutes of the state of Ohio.
    Plaintiff’s attempt to make something out of the point that in the case of Bagaley v. Waters, 7 Ohio St., page 360, that the petition in that case contained no allegations of any secret trust. We take it, that in the case at bar the fact as to whether such allegation is contained in the petition of plaintiff or not cuts no figure.
    The real point is, was there a trust, secret or otherwise, created in favor of other creditors by the agreement between the parties for the sale and purchase of the Young & Miller stock.
   Williams, J.

By section 6343, of the Revised Statutes, it is declared that: “All assignments in trust to a trustee or trustees, made in contemplation of insolvency, with the intent to prefer one or more creditors, shall inure to the equal benefit of all creditors, in proportion to the amount of their respective claims; and the trust arising under the same ' shall be administered in conformity with the provisions of this chapter. ’ ’

That the transfer, by Young & Miller, of their property, was made when they were insolvent, in contemplation of insolvency, and with the intent to prefer some of their creditors, is admitted by the pleadings, and established by the finding of facts; and the only question in the case is, whether the property, in the hands of those to whom it was transferred, was impressed with a trust. The statute does not make it essential to the establishment of the trust that it be expressed in the instrument of assignment. It is sufficient if it arise out of the agreement of the parties, or appear from the nature of the transaction. It is shown by the facts found, that when Young & Miller made the transfer of their property to Potts, Eck and Hughes, one of the creditors for whose claim it was designed to provide, and thus give it preference, was an incorporated company, called “The J. E. Potts Salt & Lumber Company,” of which Mr. Potts was a director, with authority to represent it in the transaction; and, that by the ag’reement for the transfer, and as part of the consideration therefor, the claim of the company, as well as those held by Eck, and by Hughes against Young & Miller, were to be canceled. The real estate was conveyed directly to Potts, Eck and Hughes, and written assignments of „the personal property were executed to them. They took immediate possession of all the property, and at the same time entered into an agreement between themselves to dispose of it, and apply the proceeds, first to the payment in full of “the indebtedness of Young & Miller to Eck and Hughes,” and pay the remainder to John E. Potts as agent and general manager of the Salt and Lumber company. The indebtedness of Young & Miller to the company was evidenced by their promissory notes, which at the time of the transfer of the property were outstanding in the hands of parties to whom they had been assigned, but were afterward taken up, and are still held by the company. They do not appear to have been canceled, or surrendered to Young & Miller. Upon this state of facts, it seems clear that a trust was raised in behalf of the company, which it could, by appropriate action, enforce against the property, and those to whom it was transferred. It is a familiar rule, that an agent who acquires property with the means of his principal, or for a consideration moving from the principal, and takes the title in his own name, holds it in trust for the principal; and, in general, when property is purchased in the name of one person, and the consideration, or an aliquot part thereof, is paid by another, a trust in the property results in favor of the latter. In so far as the title to the R property, real and personal, transferred by Youing & Miller, was vested in Potts, he was undoubtedly a trustee for the corporation he represented, and which furnished a definitely ascertained part of the consideration; and certainly he is none the less a trustee because the title was taken in his name and the names of two others with the consent of the company. The relation of Potts, ahd of the corporation to the transaction, is fully shown by the arrangement to which those others were parties. The real estate was conveyed to the three persons, Potts, Eck and Hughes, as tenants in common, and the personal property transferred to them jointly. They each, thus became seized of the whole and every part of the property, and it was so held by them charged with the trust in favor of the Salt and Lumber company; so that, they all became trustees for the company, and could be compelled by it to make a proper application of the property to the company’s claim, or account for the proceeds, and their administration of the trust, if the transfer did not fall within the operation of section 6343, which requires the trust to be administered for the equal benefit of all the creditors, in accordance with the provisions of the statute governing the administration of assignments of insolvent debtors. The trust relation to the company, of the defendants who received the property, is recognized by the agreement they entered into at the time the property was transferred to them, to the effect that they would dispose of it, and apply part of the proceeds to the indebtedness of Young & Miller to the company. Being thus trustees for the creditor, they were trustees of the debtors who chose to invest them with the title to the property for the benefit of the creditor; and being trustees for one creditor, the statute makes them trustees for all, and requires the trust to be administered for the benefit of all, notwithstanding the transfer of the property was made in good faith, and without actual intention to hinder or defraud any of the creditors.

We do not find it necessary to decide whether a trust was created in favor of the other creditors whose claims were assumed, by these persons who received the property, as a part of the consideration for its transfer. The case, in the feature we have considered, is plainly distinguished from Bagaley v. Waters, 7 Ohio St., 360, and the doctrine of that case should not be extended.

Judgment reversed.


author: Minshall, J.

text:
    Findlay v. Frey.

      Street improvements — Assessments—“Foot front” — Street sections.

    1. Under section 2270, Revised Statutes, the value of the lot or laud, with the improvements, as assesssed for taxation, is to be taken in determining the limit to which it may be assessed for the improvement of a street on which it abuts, whether made by the-foot front or otherwise.
    2. Section 2269, Revised Statutes, applies to an assessment by the front foot only, where land, bounding or abutting on the improvement, is not subdivided into lots; and its object is, not to fix the depth of lots for the purpose of varying the amount of the assessment, but a depth beyond which its lien, cannot, in such cases, attach.
    3. Where a street is of different widths, it may, in á proceeding to < improve it, be divided into as many sections as there are different widths; and the property on each section assessed for the cost of the same.
    (Decided May 22, 1894.)
    Error to the circuit court of Hancock county.
    The suit below was brought in the common pleas of the county by Priscilla B. Frey against the city of Findlay and its treasurer, to enjoin the collection of two assessments made upon her property, one being' for the payment of the costs and expenses of an improvement of Main street, and the other for the cost and expenses of an improvement of Sandusky street; the property of the plaintiff being situated upon both streets at the northeast corner of their intersection. She alleged certain irregularities in the proceedings, and want of authority to make the assessments. An answer having been filed, the ease’was heard and the petition dismissed. On an appeal to the circuit court, the case was heard upon the pleadings and evidence, a finding of the facts was made by the court; a motion for a new trial was made and overruled, and a decree entered upon the finding, perpetually enjoining the collection of the assessment, without prejudice to the right of the city to make another and proper assessment; and adjudged the costs against the city, to which finding and judgment it excepted; and prosecutes error to reverse the same.
    The finding of facts is as follows:
    “That on April 14, 1890, the council of the city of Findlay passed an ordinance to improve Main street, in. said city, by paving' the same from Blanchard river south to Hardin street a distance of about 1,800, feet including a part of street on which plaintiff’s part of lot, to wit: Thirty feet in width and 140 feet in depth abutted, and providing further by said ordinance, that the cost and expense of said improvement should' be assessed by the foot front upon all the lots and lands abutting upon said improvement.
    “Afterwards, by another and separate ordinance, the council provided for the paving of Main street from Hardin street to Lima street, a distance of about 1,000 feet.
    “On January 19, 1891, the council passed an ordinance to assess the cost of said improvement by the foot front upon all the lots abutting upon said street between the river and Lima street, a distance of about 2,800 feet, without specifying particular lots, and regardless of their depth, which distance included the part of the lot owned by said plaintiff! The total cost so assessed was $53,030.18, making the assessment $11.13i per foot front. On July 6, 1891, the said council passed an ordinance of that date to improve Sandusky street from Main street east to the T., C. & C. railroad, including the part of said street on which plaintiff’s part of lot lies lengthwise, to wit, 140 feet in in depth, and providing further by said ordinance that the cost and expense of said improvement should be assessed by the foot front upon all the lots and lands abutting upon said improvement.
    ‘' On August 3, 1891, the council, by ordinance of that date, assessed the cost of improving said street upon the lots abutting thereon by the foot front without specifying or describing any particular lot and regardless of their depth.
    “The amounts so assessed have been before the commencement of this action certified by the clerk under the order of the council, to the county auditor, and by him placed upon the duplicate for collection.
    “At the time of the commencement of this action the improvement of Main street by paving with fire-clay brick had been completed, but the improvement on Sandusky street had not yet.been commenced, but was afterward completed.
    “All lots abutting on Main street as platted, numbered and .recorded, have a frontage on said street of 50 feet, with a depth of 200 feet, and all lots abutting on Sandusky street as platted, numbered and recorded, had also a frontage of 50 feet, with a depth of 200 feet. Plaintiff owns part of lot No. 96, situated on the northeast corner of Main and Sandusky streets, to wit: The southwest part of said lot having a frontage on Main street of 30 feet with a depth of 140 feet, and lying lengthwise on Sandusky street 140 feet and a depth, of 30 feet, the remainder of said lot being owned by other parties. The fraction of said lot so owned by plaintiff is valued upon the duplicate for taxation at 88,230.00, as follows: Buildings at $4,980.00, and lot at $3,250.00. The amount assessed against plaintiff for the Main street improvement is S11.13-J- per foot front, amounting to $334.05. For the improvement on Sandusky street the assessment against plaintiff was made bjr the foot front for the entire length of the 140 feet owned by plaintiff, lying lengthwise upon said improvement.
    “The total assessment upon plaintiff’s premises for the two improvements amounted to $1,407.66, and more than 25 per cent, of the value of the lot as assessed for taxation.
    “By the assessing ordinance, as duly passed, providing for the cost of improving Sandusky street, the street is divided into four sections. The first section of 200 feet, including plaintiff’s premises of 140 feet, is assessed at $7.28 per foot front, while the other sections, comprising lots as platted, numbered and recorded, abutting upon said improvement, to wit: Lots fifty feet frontage and 200 feet in depth, and assessed at rates varying from one to two dollars per foot front less.
    “That Sandusky street along said improvement varies in width, each section as provided by said ordinance being of different widths.
    “The assessment against plaintiff’s premises on Main street was made the same per foot front as assessed on other lots of 200 feet depth notwithstanding the depth of her part of lot was only 140 feet. And the assessment of the Sandusky street improvement, other than plaintiff’s, was made by the foot front upon all the lots as platted, numbered and recorded, to wit: 50 feet frontage and 200 feet depth.
    “Plaintiff had knowledge of the assessments which she derived from the resolution and ordinances of the council relating’ thereto, and knew that the streets were being improved and paved with fire-clay brick, and knew that her part of lot would be assessed for said improvement. Since the commencement of this action the council, by ordinance or resolution, have remitted 25 per cent, of the assessment, being that much more than the actual cost, but still leaving- the total assessment of both improvements upon the premises of plaintiff more than 25 per cent, of the valu§ of the lot exclusive of the buildings as assessed for taxation.
    “It is therefore ordered, adjudged and decreed, that the said defendants be and they hereby are perpetually enjoined from collecting from plaintiff the assessment so made for said improvements, without prejudice, however, to the making ^of another and proper assessment by the city council of .the city of Findlay, for the cost of said improvement.
    “It is further ordered that the city of Findlay pay the costs herein taxed at $--, and that this cause be remanded to the common pleas court of this county for execution, to all of which findings, order and decree, said defendant at the time excepted and does here and now except.
    “Thereupón came this cause further to be heard upon the motion of said defendant for a new trial of this cause, upon the grounds set forth in the written motion herein duly filed.
    “Upon consideration whereof the court overruled said motion and refused to grant a new trial, to which ruling’ and refusal to grant a new trial the defendant excepted and does.here and now ex- ' cept. ”

      Wm. F. Duncan, for plaintiff in error.
    The statute marks out three methods of assessing lots and lands for street improvements: By benefits, by valuation and by the foot front. Section 2264, Revised Statutes.
    The ‘' foot front ’ ’ is the unit of calculation. In proportion to the number of “feet front” is each lot and parcel of land assessed to pay the cost and expense of the improvement.
    The number of feet front of any certain lot or parcel of land is a question of fact. Haviland et al. v. Columbus, 50 O. S., 471. In its determination the question of depth cuts no figure. Depth is not considered in assessments by the “foot front” except where the property assessed “is land bounding or abutting upon the improvement not subdivided into lots,” and then only for one purpose, viz.: To fix a limit beyond which the land shall not be subject to such assessment. I can conceive no case where the provision can affect anything where the “land not subdivided into lots” is of less depth than “the fair average depth of lots in the neighborhood. ” Section 2269, Revised Statutes, as amended February 7, 1889; 86 Ohio Laws, 15. But in the case at bar we have no “land not subdivided into lots ” as qualified by said section, nor does the section apply to lots lying lengthwise as formerly. Cincinnati v. Seasongood, 46 Ohio St., 300, 301; 81 Ohio Laws, 86; 84 Ohio Laws 72; 86 Ohio Laws, 15.
    A lot or parcel of land has as many feet front whether' it is fifty feet deep, or 200 feet deep. Whether it is assessed for taxation or not, is a lot numbered and recorded, or is land not subdivided into lots. Its frontage neither shrinks nor stretches by reason of its depth. There is no assessment by the area. Crawford v. Cincinnati, 26 W. L. B., 215. Gibson v. Cincinnati, 27 W. L. B., 80.
    The same principle is recognized in City v. Oliver, 31 Ohio St., 371; Griswold v. Pelton, 34 Ohio St., 482; Springer v. Avondale, 35 Ohio St., 620; Parmalee v. Youngstown, 43 Ohio St., 162.
    A tract of land not of greater depth than the average depth of lots in the neighborhood may be a lot, and assessed as such under section 2269, Revised Statutes.

      H. D. Critchfield and J. D Critchfield, for plaintiff in error.
    Section 2, article XII, of the constitution, expressly provides that laws shall be passed taxing by a uniform rule all property both real and personal. Section 6, article XIII, of the constitution, provides that the general assembly shall provide for the org-anization of cities, etc., by general laws, and restrict them from taxation, assessment, borrowing money, etc. An assessment is not a tax, and the rules by which each is governed are distinct, and are based upon wholly different grounds. An assessment is in the nature of a special tax, and assessed against the property of those specially benefited by the improvement for which the assessment is made. Lima v. Sanitary Association, 42 Ohio St., 130; Reeves v. Treasurer of Wood County, 8 Ohio St., 333; Hill v. Higden, 5 Ohio St., 243.

      But all taxes, whether for corporation, township, county or state purposes, must be levied by a uniform rule on all property, real and personal. City of Zanesville v. Auditor of Muskingum County, 5 Ohio St., 590; Hill v. Higden, 5 Ohio St., 243. So that all assessments for taxation are made, whether upon real or personal property, for the purposes solely of general taxation for there can be no other purpose of taxation. The theory, therefore, that land is valued separately from the improvements for some other purpose of taxation than that of general taxation is, we submit, without the slightest fountion in fact.

      J. A. & E. V. Bope, for defendant in error.
    1. Section 2327, Revised Statutes, provides that while proceedings with respect to improvements shall be liberally construed, by councils and courts, to secure speedy completion of the work and payment of the assessment, yet those proceedings shall be strictly construed in favor of the owner of property assessed as to the limitations on assessments of private property. Here is not only a rule of construction and interpretation, but a limitation as well, upon both council and courts.
    2. Assessments are a species of taxation and the exercise of the taxing power, with this difference: Taxation is the exaction from individuals for their respective shares of contribution to the public burden in the maintenance of the government. Assessment is the taking of private property for public use by the right of eminent domain, and its exercise is more strictly guarded than that of taxation. Scoville v. The City of Cleveland, 1 Ohio St., 136.

      3. A taxing district is necessary for the validity of an assessment. Raymond v. Cleveland, 42 Ohio St., 522, 527.
    4. In no event can property be assessed for more than its ratable share of the actual cost. Pike v. Cummins, 36 Ohio St., 213, 214.
    5. The rate when assessed by the foot front must be uniform upon all property assessed. Jaeger v. Burr, 36 Ohio St., 164.
    This is a principle constitutional in its nature, universal, and to which there are no exceptions. Equality and uniformity are two essential conditions necessary to the exercise of the taxing and assessing power, made so by the letter and spirit of the constitution itself.
    6. The foundation of special assessments for public improvements is the special benefit derived by the owner of the property over and above the rest of the community, are justifiable only upon the ground of benefits, without which no assessment can be made, and the burden must be equally distributed. Wewell v. Cincinnati, 45 Ohio St., 424; Chamberlain v. Cleveland, 34 Ohio St., 561.
    Guided by these authorities and the light of the rules and principles so well settled, we claim'that, under the facts so found by the circuit court, the assessments made upon the defendant in error are void,- and in plain violation of the provisions of the statutes governing assessments, and in gross violation of the rights of the lot owners.
    Again, section 2264, Revised Statutes, provides that the ordinance assessing the cost of the improvement shall “set forth specifically the lots and lands to be assessed.”' This we understand to be the rule as approved by this court in Raymond v. Cleveland, 42 Ohio St., 528, where the court says “that now specific property to be assessed must be designated,” etc. By section 2285, the assessment is a personal obligation upon the owner of the lot, as well as a lien upon the lot itself.
    Section 2264 provides that the assessment, if made by the foot front, shall be upon the “lots” and lands abutting upon the improvement.
    Section 2269 provides, if it means anything, that in making assessments according to valuation, the council shall be governed by the assessed value of the lots as numbered and recorded; the last clause of the section, provides that the section shall apply to other assessments excepting those made -according to benefits.
    In case of Cincinnati v. Oliver, 31 Ohio St., 371, 376, this court holds that the same rule and the same limitations applies to assessments, whether by valuation or by the foot front.
    By section 2269, if in making an assessment by the foot front there is land either bounding or abutting upon the improvement, the council is required to fix the depth of such land, so that it will be a fair average depth of neighboring lots subject to the assessment. The same rule applies if the assessment is made according to the valuation for taxation. The value must be determined upon the average depth of the land. Hence, there are two essential conditions constituting the foundation of assessments necessary to their validity, and without which they are illegal, to wit, benefit and depth. That we are correct in this claim, we refer to the opinions of the court in the following cases, and the principles there laid down as governing the power of assessments: Cincinnati v. Oliver, 31 Ohio St., 377; Springer v. Avondale, 35 Ohio St., 620; Wewell v. Cincinnati, 45 Ohio St., 424, 425; Haviland v. Columbus, 50 Ohio St., 471; Chamberlain v. Cleveland, 34 Ohio St., 561; Hill v. Higdon, 5 Ohio St., 247.
   Minshall, J.

The principal objection urged to the validity of the assessments made upon the property of the plaintiff below is, that in the aggregate, they exceed the amount that can lawfully be assessed upon her property in any period of'five years. Section 2270, Revised Statutes, provides that the assessment shall in no case amount to more than twenty-five per centum of the value of the property as assessed for taxation; and section 2283 further provides that special assessments, whether by the front foot or otherwise, shall be so restricted, that the same territory shall not be assessed for making two different streets, within a period of five years in such amounts that the permitted maximum assessment will be exceeded thereby. Now, it is contended, from a construction, placed on the language of section 2264, Revised Statutes, taken in connection with the provisions of section 2790, fixing the duties of district appraisers of real estate, that the language, “the value of the property assessed for taxation, ” contained in section 2270, means the value of the land simply, without its improvements; because, by section 2264, the council, preparatory to ordering an improvement to be paid for by an assessment on the foot front or otherwise, is, by ordinance, required to set forth “specifically the lots and lands to be assessed, ” and that it appears from section 2790, that lots and lands are, for the purpose of taxation, appraised separately from the improvements upon them. We are unable to collect any such - intention from the statutes referred to. The statutes upon the subject have been in force, substantially as they how are, for a great many years, and this is the first time the. question has been raised or mooted. The practice has been uniformly the other way ; and, as we think, in conformity to the real intention of the legislature. Ordinarily, in legal contemplation, where a lot or tract of land is mentioned or described, it includes, without more, all the improvements upon it, constituting part of the realty; so that the description of the lots and lands to be assessed, required by section 2264, includes the improvements thereon for the same purpose; and it is one-fourth the value of the lot or land as assessed for taxation, that is to furnish the limit to the assessment that can be made thereon under the provisions of section 2270. The provisions of section 2790 have, as we think, no reference to, or connection whatever, with the subject of assessments; nor were the statutes regulating assessments made with any reference to this section. It requires the assessor to obtain a pertinent description of each tract and lot of real property in his district, and note on his plat book separately the value of dwelling houses, mills, etc., exceeding the value of a hundred dollars which shall be carried out as a part of the value of such tract; and this is its value as assessed for taxation, and on which taxes are in fact levied. The purpose of requiring the value of the improvements to be separately stated, was, in case of their destruction by fire or other agent, to furnish a basis for the taxation of the land, until the next decennial appraisement. It will not be claimed that a street improvement is of no value to the improvements on the abutting property; indeed, its chief value is to such improvements, increasing as it does, the owner’s convenience in the enjoyment ' of his improvements. The aggregate of the two assessments made on the property of the plaintiff below, does not exceed twenty-five per centum of its value as assessed for taxation; and they are, therefore, not invalid on this ground.

It is also claimed that under section 2269, the depth of the plaintiff’s property on the respective streets, shou]d, in making the assessments, have been taken into consideration. But this section has, as we think, no application to the ease. Where the assessment is by the front foot, it applies only where land “bounding or abutting on the improvement, has not been subdivided into lots;” and then merely for the purpose of fixing a limit beyond which the lien of the assessment shall not attach; and the limit to be fixed is, the ordinary depth of lots in the ■ neighborhood. The plaintiff is the owner of a subdivision of a lot,'and does not therefore come within the provisions of this section. The depth of her lot on Main street or upon Sandusky street, is not material, if it in fact fronts upon both. The making of assessments by the front foot has been approved as an equitable mode of apportioning the costs of an improvement upon the property benefited. Railway Co. v. Connelly, 10 Ohio St., 159. And, irrespective of its depth, where regard is had to its proper front, is as likely to avoid inequality, as any mode that may be adopted. Where property lies lengthwise on an improvement on which it also fronts, the benefit of the improvement to the propertj^ is, manifestly, more in proportion to its front than to its depth, particularly where used for business purposes. Absolute equality in making assessments, may find a place in theory, but is not at-tamable in practice. Apportionment, whether according to benefits or according to valuation, by the estimate of men, is subject to the inaccuracies of fallibility, or, per chance, to the influences of favoritism or personal interest; so that all that can reasonably be demanded of whatever method that may be adopted, is that it shall tend, in its general application, to a fair and just apportionment of the burthen among those benefited by the improvement; and that apportionment by the front foot irrespective of the depth of lots, generally accomplishes this result, is evidenced by the freqency of its adoption, where, under the statute, the-parties have a choice of different methods.

It is also objected that the assessment on San-dusky street is not uniform. The street was improved in sections, because not of uniform width. Each section is, however, of uniform width, and the assessment thereon the same. The method adopted was a just one. Each section pays for the improvement on it. The same result could have been attained by separate proceedings. This, however, would have added to the expense, without any compensation to the property holders. No good reason is shown why it could not all be done in one, as well as in manjq different proceedings. This is not inconsistent with Jaeger v. Burr's Admr., 36 Ohio St., 164. In that case, allowances were made to- some of the property holders on the improvement for improvements made by themselves on the street improved; so that the amount assessed them by the foot front, was less than it was on others for the same improvement. This, the court held, invalidated the assessment. Here, on the same section, or improvement, each is assessed at the same rate. •

It is also claimed that the property of the plaintiff lies lengthwise, but does not front on Sandusky street. That its front is on Main street, and should, therefore, under the Haviland case, 50 Ohio St., 471, be assessed for the number of feet front it has 'on Main, if turned so as to front on Sandusky street, which would be thirty feet. The finding of fact hardly warrants this conclusion. The court finds that it fronts thirty feet on Main street and lies lengthwise 140 feet on Sandusky street, without finding that it does not front thereon. In view of this uncertainty in the finding, the case - will be remanded to the circuit court to make an assessment in accordance with the rule laid down in the Haviland case, and followed in the case of Sandrock v. Columbus, Ante, 317, if the court finds that, as a matter of fact, though the property abuts, it does not front, on Sandusky street; otherwise, that the prayer of the petition be not allowed.

Other objections are made, but do not, as we think, affect the validity of the assessments, particularly, in view of the fact, that the plaintiff desired the improvement to be made, and knew that her property was to be assessed for the costs and expenses of the same.

Judgment reversed, and petition dismissed as to the assessment for the improvement of Main street; and cause remanded for fw'ther proceedings as to that for the improvement of Sandusky street.