Cincinnati v. Polster

• Citation: 96 Ohio St. 155,117 N.E. 155
• Decision Date: 03 April 1917
• Docket Number: 15300
• Parties: City Of Cincinnati Et Al. v. Polster Et Al.
• Court: United States State Supreme Court of Ohio

117 N.E. 155

96 Ohio St. 155

City Of Cincinnati Et Al. v. Polster Et Al.

15300

Supreme Court of Ohio

April 3, 1917

City sewer assessment - Local drainage by private sewer - Exemption from assessment warranted only - When local drainage and right of maintenance permanent.

1.

Where pursuant to appropriate legislation regular throughout,an assessment is levied upon lots and lands for the construction of a sewer in a city street, and exemption of a lot abutting thereon from assessment for the construction thereof is claimed on the ground that it is provided with local drainage, the burden is upon the owner to show that local drainage has been provided which is adequate to meet the needs of such lot both for surface drainage and the usual purpose of sewerage.

2.

A lot is not so provided with local drainage as to exempt it from assessment for the construction of a sewer in the street upon which such lot abuts, where it appears that its only drainage facilities are afforded by a privately constructed drain through the adjoining premises over which the owner of the lot in question has no control and no right to use and maintain such sewer.

3.

Exemption of such lot from assessment on the ground of present adequate drainage is warranted only when it is shown that the drain whereby it is served is permanent in its character of construction and the owner of such lot has a right to permanently maintain and use it.

The defendants in error, John G. Polster Charles Lobitz, Frank Allgeier and others, brought action in the court of insolvency of Hamilton county wherein they asked an order perpetually enjoining the collection of an assessment theretofore levied upon their severally-owned certain city lots to meet the cost and expense of constructing a sewer in Fairview avenue in the city of Cincinnati, upon which said lots fronted and abutted. The court of insolvency granted the relief prayed for. The case was appealed and the court of appeals entered a similar decree, to which error is prosecuted.

The bill of exceptions contains a statement of facts, which the parties agree embraces all the evidence offered by either party on the trial in the court of appeals. The material and essential facts contained therein are as follows:

Fairview avenue, Westview avenue and McMillan street are public streets of said city, and the lots in question in this case front on Fairview avenue. The defendants in error Charles Lobitz and Sophia Lobitz acquired their said lot by deed which contained a clause conveying: "also a right two feet wide for drain and sewer through sewer now constructed being forty-eight (48) feet south of Straight street, and running from the lot above described to Westview avenue, for a period extending one year after sewer is ready for use in Fairview avenue." Said lot is now drained by a sewer referred to in the deed, which is constructed through a lot west of the Lobitz property and empties into the public sewer in Westview avenue, the property through which said sewer is constructed not being owned by either Charles Lobitz or Sophia Lobitz. More than one year has elapsed since the completion of the public sewer in Fairview avenue.

The defendant in error Frank Allgeier acquired title to his lot by deed which contained a clause conveying to the grantee the right to lay and maintain a sewer pipe from said lot through the adjoining premises of the grantor to Westview avenue, but expressly providing that "the right to so use and maintain said sewer pipe or drain shall cease as soon as a public sewer is laid in Fairview avenue in front of said fifty-foot lot." Said property is now drained by the sewer referred to in said deed, which sewer is constructed through a lot not owned by Frank Allgeier and empties into the public sewer in Westview avenue.

The lot belonging to defendant in error Herman Suer is drained by a sewer constructed therefrom southwardly to McMillan street through property not owned by Herman Suer; but he was the owner thereof at the time of the construction of the sewer therein.

The city of Cincinnati made no objection to the drainage of said properties in the manner in which they are now drained, nor has the owner of the properties through which said several sewers are constructed made objection to the use thereof by the defendants in error. Said sewers were in use prior to the passage of the legislation for the con- struction of the Fairview avenue sewer by the city, and have been continuously used for the purpose of conducting drainage and sewage from said properties, and neither of said properties is connected with the public sewer in Fairview avenue. The city of Cincinnati passed the necessary legislation, and improved Fairview avenue by constructing and laying therein a public sewer in front of the said lots of the several defendants in error, and for the purpose of paying a portion of the cost of said improvement levied an assessment against each front foot of the property of said defendants in error in the sum of 2.685 dollars. In anticipation of the collection of said assessment the city issued its bonds in an amount equal to the assessments not paid in cash, and interest on the same. The Fairview avenue sewer was completed...