ASSESSMENT FOR. COST OF SEWER IN EXCESS OF ORIGINAL PLANS.

Court of Appeals for Licking County.

#### Isaac N. Wilson et al v. City of Newark.

Decided, March Term, 1917.

*Sewers—Injunction Against Collection of Assessment for-?—Where Constructed to Perform a Double Purpose at Some Time in :the Future.*

Where a sewer is constructed for both drainage ana sanitary purposes, but its use as a sanitary sewer must be postponed, an action lies by: an abutting owner for injunction against collection.of. so. much of the assessment as represents -the increased cost in adapting the sewer to sa.nita.ry purposes .until .such .time as it is open for usé for that purpose, if such use is not delayed for an unreasonable period-in the instant case two years.

*Phil. B. Smythe,*for plaintiffs. .

*Ralph Norpell,*City Solicitor, and *Martin & Martin,*contra.

Houck, J.

This is an appeal case, and was heard to this court upon the evidence. The plaintiffs pray for an injunction perpetually enjoining the defendant from collecting certain assessments levied on the properties of each of the plaintiffs herein by reason of the construction of a certain sewer in the street running along the properties of the plaintiffs.

It is claimed by the plaintiffs that in the construction of the sewer in question it was done at a cost in excess of that provided in the plans and specifications, and that thereby the defendant is estopped from collecting said assessments. It is not claimed by counsel for plaintiffs that there was any irregularity in the proceedings of the defendant as to the plans and specifications or construction of said sewer. The evidence in this case clearly shows that the sewer is not only a drainage sewer, but is a sanitary sewer, and that it was constructed by the defendant with *477these two objects in view. In other words, the sewer in question is what may be termed a combination sewer, and may be used, for drainage, sanitary and possibly other purposes. We further find from the evidence, that the plaintiffs have been and are substantially benefited by the. construction of this sewer, if permitted to use it not only for drainage but for sanitary purposes. The evidence clearly establishes-the fact that the cost of constructing, the. sewer, in question for drainage purposes would he .about.seventy per.cent, of the.assessments sought to be levied on the properties1.of plaintiffs for such construction,-and"that thirty per cent, of said assessments would be for sanitary purposes.' We do not think it equitable, as between the parties hereto, that the plaintiffs should be compelled to pay -the entire cost of the sewer in question, or be required to pay the full amount of such assessments, until they are permitted-to use it for all.of the purposes for which it was constructed.

In view of the facts, as clearly established by the evidence in this case, and the law applicable to those facts, we are of the opinion that, a permanent injunction should be allowed as to 30 per cent, of the assessments levied upon the properties of each and all of the plaintiffs, and a permanent injunction refused as to 70 per cent, of such assessments, and in casé defendant furnishes an outlet for sanitary sewer within two years from April 1, 1917, the- 30 per cent, to become effective, otherwise th.e injunction as to the 30 per cent: to stand. Defendant to pay costs.

. Decree and ■ judgment accordingly.

Allread, J., concurs.