Scott v. City of Toledo

• Decision Date: 28 September 1888
• Citation: 36 F. 385
• Parties: SCOTT et al. v. CITY OF TOLEDO.
• Court: U.S. District Court — Northern District of Ohio

36 F. 385

SCOTT et al. v. CITY OF TOLEDO.

United States Circuit Court, N.D. Ohio, Western Division.

September 28, 1888

Brown Geddes & Jackson, for complainants.

Guy W Kinney, City Sol., and Parks & Barber, for defendant.

JACKSON J.

The present suit seeks to enjoin and restrain the city of Toledo its officers, agents, and attorneys, from proceeding or attempting to enforce a certain ordinance passed on or about November 30, 1885, by the common council of said city entitled 'An ordinance to lay off, open, and extend Woodruff avenue,' which provided for the appropriation by said city of certain real estate belonging to complainants, for the purpose of a public street or highway, as an extension of Woodruff avenue, and which assessed upon complainants' lots and lands bounding and abutting upon said avenue so to be laid out and extended, on the basis of a foot-frontage assessment, the entire costs and expenses incident to and resulting from said appropriation, together with all expenses of laying off, opening, extending, widening, straightening, and improving said extended avenue. Said ordinance is as follows:

'An ordinance to lay off, open, and extend Woodruff avenue:

'Section 1. Be it ordained by the common council of the city of Toledo, two-thirds of all members concurring, that Woodruff avenue shall be laid off, opened, and extended and made a uniform width of sixty-six (66) feet, from Scottwood avenue (formerly Raymond street) to the west line of the east 146-100 acres of that part of the west half of the north-west one-fourth of section 35, town 9, range 9 east, south of lots 1 and 2, and north of Monroe street.

'Sec. 2. That for the purpose of laying off, opening, and extending said Woodruff avenue, and making the same a uniform width of 66 feet between the aforesaid points, it is necessary and hereby ordered that the following described parcels of lots or lands be appropriated by the city of Toledo, to-wit: Being more particularly described as follows, to-wit: Commencing at a point where the south line of Woodruff avenue produced intersects the west line of Scottwood avenue; thence north 66 feet along the west line of Scottwood avenue to the north line of Woodruff avenue produced; thence along the north line of Woodruff avenue produced to the west line of the east 1 46-100 acres of that part of the west half of the north-west one-fourth of section 35, town 9, range 7 east, south of lots 1 and 2, and north of Monroe street; thence south along said west line above described to the south line of Woodruff avenue produced; thence east along said south line of Woodruff avenue produced to the place of beginning,-- which lies within the lines of said Woodruff avenue extended, and not now dedicated for street purposes, and being in said city of Toledo, Ohio.

'Sec. 3. That the costs and expenses of laying off, opening, extending, and widening and straightening said street, including all expenses incident to and resulting from the appropriation of the lots and parcels of land hereinbefore described, shall be assessed upon the lots bounding and abutting upon said Woodruff avenue, between Scottwood avenue and the west line of the east 1 46-100 acres above described, in proportion to the foot front, and the amount so assessed shall be payable in two annual installments.

'Sec. 4. The city solicitor is directed to institute the necessary proceedings in the probate court of Lucas county for the condemnation and appropriation of the lots and lands specified for the above purposes.'

This extension of Woodruff avenue, which the ordinance seeks to accomplish, will affect only the property of complainants; that is, the land of no other party or parties will be appropriated thereunder, and the only lots bounding and abutting on said proposed extension, and subject to the foot-front assessment, made to cover the costs and expenses incident to and resulting from the appropriation and the improvement of the street, are the remaining lands of complainants, left after carving out the street. Thus, under the practical and actual operation of said ordinance, there will be taken from or off the land of complainant Scott 33 feet in width adjoining the center line of said proposed extension, leaving him a narrow strip of ground with a frontage on said street or extension of 150 feet in length and 17 feet in width. This 17 feet in width, at one end of the strip, has a frontage on Scottwood avenue, (a street crossing said Woodruff avenue extension at right angles.) From the land of complainant Calkins there will be appropriated, at the west end of the proposed extension, a parcel of ground 66 feet in width, leaving her on either side thereof a frontage of 75 feet; and from the east end of her property there will be taken 33 feet in width, leaving her a frontage on said extension of 150 feet. The frontage on said extended avenue of complainant Scott's remaining ground will be 150 feet, and of complainant Calkins will be 300 feet. this frontage of complainants, being the only property bounding and abutting on said proposed extension, is by the terms of the ordinance assessed on the foot front with all the costs and expenses incident to or resulting from the appropriation of complainants' land for the purpose of the street sought to be opened and extended; and is also charged with all the expenses of laying off, opening, and extending and widening and straightening said street. Under a stipulation of the parties it is agreed that--

'The amount which said Scott can recover for his property so appropriated, and damage to his remaining property, will be not less than the sum of $1,500, and not more than the sum of $2,000. The amount which said Calkins can recover for the property so appropriated, and for damage to her remaining property, will be not less than the sum of $4,000, and not more than the sum of $5,000. The total amount which will be chargeable to the property bounding and abutting upon that part of Woodruff avenue so laid off, opened, and extended will not be less than $4,500, or ten dollars ($10.00) per foot front upon each front foot thereof. There will be chargeable to the property (remaining) of said Scott, at the rate aforesaid, the sum of not less than fifteen hundred dollars, ($1,500.00,) and to the property of said Calkins a sum not less than three thousand dollars, ($3,000.00.) The value of the remainder of said Scott's property, after said improvement shall have been made, which will be subject to said assessment, will be not more than the sum of seven hundred dollars, ($700.00,) and the value of said Calkins' property remaining after said improvement shall have been made, subject to said assessment, will be not to exceed the sum of eight thousand dollars, ($8,000.00.)'

Complainants were not given any notice of the passage of said ordinance, and of the foot-front assessment therein made on this bounding and abutting property; nor was any opportunity afforded them, either before or after its passage, to be heard before the common council in respect to said assessment, which undertook to provide for the costs and expenses connected with said appropriation in the manner above stated. In July, 1885, before the passage of said ordinance, the common council of Toledo adopted a resolution declaring it necessary to lay off, open, and extend Woodruff avenue by appropriating the necessary lands lying within the proposed street. This resolution was duly published in a daily newspaper of said city, and notice of its passage was given to complainants. Said resolution required all persons claiming damages on account of said proposed improvement to file their claims therefor with the city clerk within four weeks from the first publication of the resolution, or within 20 days after service of written notice of the same. This was the only step in the city's proceedings of which the complainants were given notice; but neither the resolution nor the notice given complainants thereof furnished any information as to how or in what manner the city council proposed or intended to secure the appropriation of the lands required to lay off, open, and extend said avenue, nor of the way in which the costs and expenses incident to or resulting therefrom were to be met, or by whom paid.

No question is made as to the power and authority of the common council of Toledo, under the constitution and laws of Ohio to appropriate private property for the purpose of laying out and opening streets, which may be deemed necessary or convenient for the public use, upon making just compensation to the owner of the property so taken. To effectuate such appropriation, where the parties cannot agree upon the price of the property taken, or sought to be acquired, the city must apply to certain designated courts for a condemnation of the land wanted, and to determine the owner's compensation therefor, and his damage to the remaining property, which are to be ascertained and assessed by a jury. The details of such proceedings in court are not involved in this case, and need not be specially noticed. The city of Toledo, under the ordinance in question, had the undoubted right to apply to the courts of the state for a condemnation of the property sought to be appropriated for the extension of Woodruff avenue, and to have fixed and ascertained by a report of a jury the compensation and damages that should be paid the owners therefor. But in making such application to the court there is no provision of the law allowing or authorizing the owner of the property sought to be taken to inquire into or contest the validity of such an assessment as that made by the ordinance in question. Such court proceedings would relate only to an ascertainment of the compensation...