Spangler v. City of Cleveland

• Decision Date: 17 November 1885
• Citation: 3 N.E. 365,43 Ohio St. 526
• Parties: SPANGLER v. CITY OF CLEVELAND and others.
• Court: Ohio Supreme Court

43 Ohio St. 526

3 N.E. 365

SPANGLER

v.CITY OF CLEVELAND and others.

Supreme Court of Ohio.

Filed November 17, 1885.

Error to district court, Cuyahoga county.

The former action came to this court, and is reported in 35 Ohio St. 469, and was remanded to the district court. Some questions as to the assessment to pay the expense of opening Hough avenue were still in dispute, and in the district court new pleadings were filed. Plaintiff sought to enjoin the collection of such assessment to pay the expense of opening Hough avenue, and for an amendment to her petition averred:

‘There has never, by anybody, been a valuation of any special benefits conferred by said opening of Hough avenue, nor has there ever been a determination that said assessment was apportioned in proportion to the special benefits derived from such opening, or that said assessment did not exceed said benefits, and in truth and in fact said assessment was not on the property benefited thereby, but only on the property fronting on said street.’

The city answered as follows:

‘Now comes said defendant, and for its answer to the amended petition of said plaintiff says that it reiterates and reaffirms all and singular the statements and allegations made and contained in its answer heretofore filed in this case, and makes the same a part of this answer, and denies each and every allegation contained in the amendment to plaintiff's petition. And for further answer says that plaintiff had knowledge of all the steps taken by the city and said village of East Cleveland in making said improvement and assessment while the same was in progress, and made no objection thereto; that said premises were greatly benefited by said improvement; the assessment therefor only covered the actual damages and cost thereof; the amount assessed is no more than was properly chargeable on said premises; the benefits conferred exceeded the amount assessed upon said premises; and the plaintiff knew the said damages and costs were to be assessed upon the lands benefited by said improvement; that after the said estimated assessment was reported to said council the city clerk was directed to and did publish notice of the making thereof as required by law; that said plaintiff failed to file any objection thereto whatever; that by reason of her failure to object to or remonstrate against all or any of the proceedings of said village and city while making said improvement and assessment, and standing by in silence while the same were being made, with full knowledge thereof, she is now estopped to deny the validity of said proceedings or said assessment. Defendant further says that there is another suit pending in the court of common pleas of said Cuyahoga county, between the same parties, for the same cause of action set forth in said amended petition, as by the record of said court will appear. Wherefore, defendant prays that the prayer of plaintiff's petition be not granted, but that this defendant be awarded judgment against plaintiff for the amount of said assessment now found due and payable, and for such other and further relief as equity may require.’

Plaintiff replied, denying each and every averment of the amended answer.

On the trial, the testimony was as follows:

It was agreed that the said assessment was levied by the city separately on plaintiff's two parcels of land, one north and one south of Hough avenue; but that on the county tax duplicate the whole of the assessments on both parcels stood as one assessment against the two parcels in gross, and that there was included in said assessment an item of 1 per cent. to pay the estimated cost of collecting the same. Plaintiff offered the resolution of ninth September, 1873, appointing an assessing committee to make an estimated assessment, contained in Journal U, p. 399, and City Record, p. 192; also the resolution of ninth December, 1873, directing notice of said report to be published, contained in Journal N, p. 574, and City Record B, p. 257; also the notice dated ninth December, 1873, from City Record B, p. 260; also the resolution of twelfth February, 1874, appointing an equalizing board, from Journal V, p. 82, and City Record, Book C; also the record of the filing the report of said equalizing board, and setting aside the report of the assessing board, tenth March, 1874, from Journal V, p. 122, City Record C, p. 44; also resolution of tenth March, 1874, appointing an assessing board, from Journal V, p. 124, City Record C, p. 44; also the record of filing said report, twenty-fourth March, 1874, from Journal V, p. 1551, and City Record C, p. 54; also the notice of such filing, dated twenty-fourth March, 1874, from City Record C, p. 56; also the resolution of fifth May, 1874, appointing an equalizing board, Journal V, p. 261, City Record C, p. 87; also the record of the filing said report, twenty-first May, 1874, from Journal V, p. 300, City Record C, p. 100; also the ordinance levying said assessment from Ordinance Book E, p. 52. Said plaintiff further offered in evidence the original report of the assessing board, appointed March 10, 1874, and a copy of the report of the equalizing board, appointed May 5, 1874, which was agreed to be a true copy, the original being lost.

The papers, resolutions, reports, notices, and records offered in evidence, are as follows:

JOURNAL U, PAGE 399, SEPTEMBER 9, 1873, REC. B, 192.

Whereas, H. D. Hovey, A. C. Gardner and John Kilby were by the late village of East Cleveland appointed a committee to report an estimated assessment to pay the damages awarded and costs incurred in opening Hough avenue between Giddings and East Madison avenues, upon land benefited thereby, which said committee have failed to report, and do not wish to serve: therefore be it resolved, that W. A. Neff, T. D. Peck, and George Watkins be, and they are hereby, appointed a committee to report to this council an estimated assessment to pay the damages awarded and the costs incurred in establishing and opening Hough avenue between Giddings and East Madison avenues, upon the lots or lands benefited thereby. Adopted. Yeas, 29; nays, 0.

JOURNAL U, PAGE 574, DECEMBER 9, 1873, REC. B, 257.

Report of the committee of freeholders, appointed for that purpose, consisting of Messrs. W. A. Neff, T. D. Peck, and Geo. Watkins, an estimated assessment, according to benefits, to pay the damages awarded and costs incurred in opening Hough avenue between Giddings and East Madison avenues. Referred to the city clerk, with instructions to give the notice required by law.

RECORD B, PAGE 260, DECEMBER 9, 1873.

Notice to whom it may concern: W. A. Neff, T. D. Peck, and George Watkins, three disinterested freeholders of the corporation, have reported to the council an estimated assessment on the property abutting on Hough avenue. The assessment is made to pay damages awarded and expenses incurred in opening Hough avenue between Giddings avenue and East Madison avenue. The said assessment is on file in the office of the city clerk. All parties having objections to said assessment must file the same in writing with the city clerk within five weeks of the first publication of this notice.

Cleveland, December 11, 1873.

THEO. VOGES, City Clerk.

JOURNAL V, PAGE 82, FEBRUARY 12, 1874, REC. C.

Resolved, that Thos. M. Marcy, T. D. Peck, and Chas. Whitaker, three disinterested freeholders of the county, be, and they are hereby, appointed and constituted a board of equalization, to equalize according to law the estimated assessment presented to this council by a committee appointed for that purpose October 11, 1873, to pay the damages awarded and costs incurred in opening and extending Hough avenue from Giddings avenue to Madison avenue, and that they be requested to meet at the mayor's office on Saturday, the fourteenth inst., and enter upon their duties.

JOURNAL V, PAGE 122, MARCH 10, 1874, REC. C, 44.

Report of the board of equalization, consisting of Felix Nicola, Chas. Whitaker, and T. M. Marcy, recommending to set aside the assessment upon lands on Hough avenue to pay the expenses of opening said avenue between Giddings and Madison avenues. Rec'd and filed, and the report of assessing board set aside.

JOURNAL V, PAGE 124, MARCH 10, 1874, REC. C, 44.

By Mr. Everett: Resolved, that Felix Nicola, Chas. Whitaker, and T. M. Marcy be, and they are hereby, appointed a board of assessment, to report to this council an estimated assessment upon the property benefited thereby to pay the costs and expenses incurred in opening Hough avenue between Giddings and East Madison avenues, and that they be requested to meet at the mayor's office on Saturday next, the fourteenth inst., and enter upon their duties. Adopted. Yeas, 27; nays, 0.

The report was in form as follows, and contained a list of each lot on both sides of the avenue:

+-----------------------------------------------------------------------+
                ¦SOUTH SIDE OF HOUGH AVENUE.                                            ¦
                +-----------------------------------------------------------------------¦
                ¦                              ¦                  ¦FEET  ¦RATE¦AM'T OF  ¦
                +------------------------------+------------------+------+----+---------¦
                ¦                              ¦SUB-LOT.          ¦FRONT.¦CTS.¦TAX.     ¦
                +------------------------------+------------------+------+----+---------¦
                ¦* * * * * * * * * * * * *     ¦* * * * * *       ¦* *   ¦* * ¦* *      ¦
                +------------------------------+------------------+------+----+---------¦
                ¦East of Giddings...........   ¦Bolton lot......  ¦438   ¦138 ¦$ 604 44 ¦
                +------------------------------+------------------+------+----+---------¦
                ¦                              ¦Deming lot......  ¦351   ¦138 ¦484 38   ¦
                +------------------------------+------------------+------+----+---------¦
                ¦                              ¦Spangler lot....  ¦859   ¦45  ¦1,245 55 ¦
                +------------------------------+------------------+------+----+---------¦
                ¦East of

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