Blue v. Wentz

• Decision Date: 17 March 1896
• Citation: 54 Ohio St. 247,43 N.E. 493
• Parties: BLUE et al. v. WENTZ et al.
• Court: Ohio Supreme Court

43 N.E. 493

54 Ohio St. 247

BLUE et al. v. WENTZ et al.

Supreme Court of Ohio.

March 17, 1896

Error to circuit court, Wyandot county.

Action by William Blue and others against Emanuel Wentz and others. There was a judgment for defendants, and plaintiffs bring error. Reversed.

The action below was brought to enjoin certain assessments made on the respective lands of the plaintiffs to pay for the improvement of a ditch. The suit was against the petitioners for the improvement and the proper county officers. On issues made up and tried, judgment was rendered in favor of the plaintiffs, granting the relief. The case was appealed to the circuit court, where, on leave given, the defendants demurred to the petition, and the demurrer was sustained. On leave given, the plaintiffs filed an amended petition; and to this a demurrer was also sustained. The plaintiffs electing to abide by their amended petition, the court rendered judgment dismissing it. The only question in the case before us is as to the sufficiency of the petition, to entitle the plaintiffs to relief. Omitting the description of the lands and that of the ditch, as well as some immaterial averments, the petition is as follows:

The plaintiffs say: ‘ They are the owners in severalty of the tracts of and parcels of land in Wyandot county described as follows: * * * In the year 1873, upon petition duly filed and bond given by David Morrison and others, the board of commissioners of said county caused to be located established, and constructed a county ditch known as the ‘ Morrison Ditch, Number 14,’ on the following route: * * * Said ditch was established and constructed at a total cost of about five thousand dollars, for the purpose of draining a large swamp or marsh, which to that time had been wholly worthless, and thereby reclaiming, and rendering valuable and capable of cultivation, a large body of land covered by the waters of said swamp, and therefore utterly incapable of being cultivated, pastured, or put to any profitable use. The lands of plaintiffs, or any part thereof were not benefited by said ditch in any manner, and accordingly, when the cost and expenses of the construction of said ditch came to be assessed upon the lands benefited thereby, no part of said cost or expenses was apportioned or assessed upon the aforesaid lands of the plaintiffs, but said entire cost and expense was apportioned to and assessed upon the lands which the drainage of said swamp would render not only productive, but pecuniarily valuable, the actual value of a large portion of said lands having been increased tenfold. And the plaintiffs now complain and say that on the 17th day of February, 1891, a petition signed by the defendants Emanuel Wentz, Amos Schoenberger, W. W. Duffield and David Kauble was filed with the auditor of said county praying the defendants the board of commissioners of said county to cause said Morrison ditch to be deepened and widened from its original point of commencement to its intersection with what is known as the ‘ Hart Ditch,’ on land then owned by one M. D. Phillips also for the widening and deepening of a certain branch ditch entering said main ditch from the west, near its intersection with said Hart ditch, and that such proceedings were had by said commissioners on said petition; that on the 10th day of March an order was made by them granting the prayer of the petition, and directing the county surveyor to go upon the line of said ditch therein described, and perform such duties and make such reports and apportionments as are contemplated and specified in sections 4454-4456 of the Revised Statutes of Ohio. And afterwards, on or about the 10th day of April, 1891, said surveyor filed his report showing the general character of the improvement, with an estimate of the total cost thereof, and an apportionment of the same. By said report and apportionment, over sixty per cent. of the total estimated cost of the proposed enlargement of said ditch is assessed against the lands of plaintiffs heretofore described. And plaintiffs say that said apportionment is unjust and unfair, and that, had it been made according to benefits, no part of the cost of said ditch would have been apportioned against them, or either of them. Upon receiving notice thereof, and that the same would be for hearing before said board of commissioners on the 23d day of April, 1891, plaintiffs appeared and filed their exceptions to said apportionment, but the same were disregarded by said board of commissioners; and with the following trivial alterations, by them made, said report and apportionment were approved by them, and an order made for the sale by said surveyor of the construction of the work of enlarging said ditch as proposed in his said report. At the time of approving and confirming said report and apportionment, the said commissioners ordered the auditor to put the assessments so made and charged upon the said lands of the plaintiffs, upon the proper duplicate for collection. The said commissioners and auditor are threatening to take all the steps necessary to make said apportionments liens upon the plaintiffs said lands, and to collect the same by legal proceedings, to the great and irreparable damage of the plaintiffs.

‘ And plaintiffs say that although no benefit whatever could accrue to their aforesaid lands by reason of the construction, cleaning out, deepening, or widening of said ditch, although none of said lands were assessed for the original location establishment, or construction of the same the said defendants are insisting that the plaintiffs should bear a large part of the expenses of cleaning out, widening, and deepening of said ditch, because the aforesaid lands of plaintiff naturally drained their waters into said swamp, and the same are carried off through said ditch, and the said defendants the board of commissioners and their engineer have made the apportionment for the cost and construction of said ditch not according to benefits which would accrue to the lands of the plaintiffs, but according to the quantity of rainfall or quantity of water which fell upon the lands of the plaintiffs, and would be carried off through said ditch. But the plaintiffs say that whatever benefit might accrue to any lands assessed for the location and construction of said ditch would...