ASSESSMENT.

[Hamilton Circuit Court,

January Term, 1894.]

Smith, Swing and Cox, JJ.

#### Peter and Alice C. Brooks v. Norwood (Village) et al.

Excessive Assessments — Payment oe Second Defeats Defense to First.

Where streets are improved on two sides of the same property, the owner having paid the second assessment in full, cannot resist the first assessment on the ground that the two assessments exceed twenty-five per cent, of the value of the property.

Appeal.

Smith, J.

This action is brought to enjoin the collection of the unpaid assessments made by the village of Norwood on a lot owned by the plaintiffs as tenants in common, situate on the---corner of Williams and Huston avenues in said village, which assessments hare been levied for the improvement of Williams avenue, one of the ten installments of which has already been paid by the plaintiff. The ground upon which the injunction is asked for is this: It is averred that the village, within the past ten years, has levied an assessment of $459.55 upon said lot of the plaintiffs for the improvement of Huston avenue, and of $79.30 for a sidewalk thereon, which has been fully paid by the plaintiff. That the value of said lot, after the improvement of both of said avenues, is $1,560; and it is agreed that the assessments so made and paid for the improvement of Huston avenue exceed in amount twenty-five per cent, of the value of said lot, after both improvements were made, and that as the owners of two-thirds of the property abutting on the improvement of Williams avenue did not petition therefor, that under the provisions of sec. 2270, Rev. Stat., as the improvement of Williams avenue was also made within the past four years, that they are not liable for any part thereof.

The evidence in the case shows that the improvement of Williams was commenced and finished before that of Huston avenue, and that the assessment here complained of was duly made and levied before the assessment was levied for the improvement of Huston avenue. So far as appears, there was no legal objection to the validity of this assessment. If it be conceded that the petition for its improvement was not signed by the owners of two-thirds of the property abutting thereon, yet there is no claim or ground for claim that the assessment levied ior the improvement of Williams avenue was in excess of twenty-five per cent, of the value of lot of plaintiffs, and at the time it was levied, there being no other assessment on the lot for the improvement of ány other street, it was valid and binding. If the village, after this, undertook to improve another street, and to levy an assessment then on the property of the_pjaintiffs, which, with the assessment before made for the improvement of Williams avenue, made the total assessment for the two to exceed twenty-five per cent, of the value of the lot, it was this last assessment which should have been attacked, and unless the provision as to the twenty-five per cent, had been waived by the plaintiffs, they might have enjoined such part thereof as would make it exceed the statutory limit. But this plaintiffs did not do; they paid it in full and now seek to escape the first assess*272ment, that made for Williams avenue. The improvements were separate and distinct, made under independent procedings, and each must stand on its own footing. And if there was any error or want of conformity to law in the assessment for the improvement of Huston avenue, this can not in any way affect the prior rated assessment for Williams avenue, and plaintiff will not be allowed to recoup as against the assessment for Williams avenue the amount he may have paid, which he was not bound to pay, for the improvement of Huston avenue.

*Krato F. Topp,*for plaintiffs.

*Wm. B. Bundy,*for the village.

But aside from this clear principle of law, it would seem that the result which must follow will not be inequitable or unjust to plaintiffs in this case, when it appears from the evidence that this subsequent improvement of Huston avenue was made at the request of one of the plaintiffs, and who voluntarily agreed with the village and bound himself to pay the full amount of the assessment which should be made against this property. The relief prayed for will be denied, the injunction dissolved and the petition dismissed.