#### William C. Neff *v.*John S. Bates et al.

1. An ordinance of a town (which was afterward, hy the act of May 3,1852, organized as an incorporated village), prescribing the mode of assessing charges for street improvements, continues in force as a valid ordinance of the village, if the mode prescribed is consistent with the powers given to the village, on that subject, by the act named.

*%*The owner of lands taken by a village for a public street, without compensation, who, with knowledge that his predecessor in title had undertaken to dedicate the land for such street, permits the street to be improved, under an ordinance assessing the expense on abutting lots, is estopped, as against a contractor, from resisting the payment of the assessment on the ground that the lands so taken were not legally dedicated to the public for that purpose.

Error to tbe District Court of Hamilton county.

This action was brought by the defendants in error, in. the Court of Common Pleas of Hamilton county, to recover of the plaintiff in error the amount assessed by an ordinance passed by the council of the incorporated village of Clifton, in the county of Hamilton, against the lots of the plaintiff in error, abutting on Central avenue in the village, for .grading and macadamizing the avenue named, by the defendants in error, under a contract with the council of the village.

The hearing in the Common Pleas resulted in a finding and judgment in favor of the defendants in error, from which an appeal was taken to the District Court, where a like finding and judgment were entered, to which the plaintiff in error excepted, and he now seeks to reverse the judgment of the District Court upon the grounds: That the court erred in its conclusions of law, and in giving judgment for the plaintiff below, upon the pleadings and findings of fact.

The facts found by the District Court are, in substance: That, in 1847, James Wilson and John B. Schroeder, being the owners of adjoining parcels of land on the east side of *170the street, now known as Lafayette avenue, in the present village of Clifton, entered into an agreement to appropriate, each, twenty-five feet in width along the east and west division line of their lands, commencing at Lafayette avenue, to be used by the parties and their heirs and assigns forever as a street, and in the event that the owners of lands, east of their lands, should at any time open a street as a continuation east of the street thus appropriated by them, then the same should become and be used as a public street; that on the 23d of March, 1850, the town of Clifton was incorporated by an act of the general assembly, and upon the taking effect of the act of May 1, 1852, to provide for the organization of cities, etc., became and still is an incorporated village for general purposes; that, in October, 1853, the owners of the lands east of and adjoining the lands of "Wilson and Sehroeder, for .the purpose of extending the street described in the agreement of Wilson and Sehroeder, then known as “Central avenue,” east through their lands to Clifton avenue, dedicated to the village for a public street, "by deed duly executed, a strip of land sixty feet in width, which was accepted by the council in November, 1853, at which time the agreement of Wilson and Sehroeder was also in its possession, it having been procured from "Wilson, one of the parties thereto, by the mayor of the village, Schroeder at the time being dead, and the fee of the lands being in his heirs, subject to the dower estate of the widow of John B. Sehroeder; that on the 2d day of July, 1866, the plaintiff in error, by proper conveyances, became the owner in fee-simple of the Sehroeder land, “ who, before the purchase thereof, had been told by the mayor of the village that Wilson and Sehroeder had dedicated a street or avenue fifty feet in width through their respective premises, the center of which was the south line of the Sehroeder land;” but was not informed how the dedication was made, whether by deed or contract, and had no knowledge of the contents of the contract between Wilson and Sehroeder, until the trial of this ease in the Court of Common Pleas, in September, 1869; that, on the 29th of September, 1866, the council *171of the village, by an ordinance duly passed, accepted the street appropriated by Wilson and Schroeder in their contract of September, 14,1847, as a public avenue, and on the same day, by another ordinance provided,for opening and grading the same to the width of sixty feet, of which thirty-six feet, in the center, were to be occupied by the road-bed and suitable gutters and culverts, and twelve feet on each side by sidewalks, for macadamizing the center of the roadbed, and for ascertaining and assessing the cost and expenses of the same in the manner provided in the ordinance-of August 8, 1850, and further providing,that the cost and expenses when so assessed should be and remain alien upon the property assessed until the same, with interest and penalties, were fully paid; that the ordinance of August 8,. 1850, provides for platting the street or avenue ordered to-be improved, and the lots abutting thereon, by the engineer, for filing such plat, for letting the work by contract by the recorder or some other designated officer of the village, for making an estimate by tbe engineer of the cost and expenses of the work, and of the proportion of such cost and expenses to be assessed on each foot front of the lots abutting on the street or avenue, for assessing the same, by ordinance, in proportion to the feet front of the lots abutting thereon, and for fixing the time when and to whom the same shall be paid ; that in November, 1866, the village, by proceedings instituted by its attorney, in the Probate Court of Hamilton County, appropriated a strip of ground five feet in width, of the land then owned by the plaintiff in error, lying along the north side of the strip, twenty-five feet in width, appropriated by Schroeder for a street, and a like strip along the south side of the strip, twenty-five feet in width, appropriated by Wilson for the same purpose, so as to make Central avenue a uniform width of sixty feet .from Lafayette to’ Clifton avenues; that the plaintiff in error was a party to the proceeding above named in the Probate Court, and on the 19th of January, 1867, received from the village the compensation adjudged for the strip of ground so appropriated; that at the time of the appropria*172tion, and up to the time the work on Central avenue waa ■commenced, the land of the plaintiff in error was inclosed by fences to the center of the avenue, and had not at any time been open to or used by the public; that from the 2d of March, 1867, to the close of that year, the plaintiff in error was a member of the council of the village; that, on •the 8th day of April, 1867, the village, by its recorder, made a contract with the defendants in error to grade and improve Central avenue, in the manner directed by the •ordinance of September 29, 1866, upon the terms specified in the contract; that the work was completed by the defendants in error on the 9th of November, 1867, and accepted by the council on the 16th of the same month, on which last-mentioned day the council, by the concurrence of all ■its members, except the plaintiff' in error, adopted an ordinance assessing the cost and expenses of grading and improving the avenue, per foot front, on the lots and intersecting streets fronting on the avenue, from Lafayette to Clifton avenues, and requiring the owners thereof to pay the amount so assessed to the defendants in error, on demand, in ten days from the date of the ordinance, and if not paid within that time, then the same, with interest and ■the penalty allowed by law, be and remain a lien on the property assessed, to be enforced and collected in the mode prescribed by law; that the plaintiff in error is the owner of the lots described in the petition of the defendants in error, fronting fifteen hundred and thirty-two feet on Central avenue, on which there was assessed, by the ordinance of November 16, 1867, the sum of $4,969.81, and that on the -26th day of the same month the defendants in error, demanded payment thereof of the plaintiff in error who refused to pay the same.

Upon these facts the District Court, as conclusions of law, ■determined:

“ 1. That the plaintiff in error is estopped in law to deny that said avenue, called Central avenue, was at the time alleged in the petition, a public highway and avenue, under ■the control and supervision of the said incorporated village *173of Clifton, and has been dedicated, laid out, and established to a width of sixty feet through and by the premises of the plaintiff in error.

“ 2. That the proceedings of the said incorporated village of Clifton, in directing the improvement of said Central avenue, and in assessing the costs and expenses thereof,, were in all respects correct and in conformity to law ; that the said council was fully authorized and empowered to direct said improvement, and to assess the cost and expenses thereof upon each front foot of the property bounding and abutting upon the street, avenue, or highwayso directed to be improved, and that the ordinance of said village,, adopted by the council thereof, on the 8th day of August, A. *d.*1850, and entitled, ‘An ordinance to regulate the col-' lection of special taxes for the'improvement of streets, avenues, lanes, alleys, and sidewalks,’ was and is a legal and valid ordinance for the regulation of the collection of special assessments and taxes for the improvements of streets, avenues, lanes, alleys, and sidewalks.

“ 8. That the defendants in error have a lien upon the-premises of the plaintiffs in error, described in the petition, for the payment of the sum of $4,969.81, with interest thereon from the 26th day of November, a. d. 1867; that, the amount due, interest computed, to the 26th day of June,, 1870, is $5,740.13; but the court disallow any penalty in this case.”

J. 6?. *&¡ II. Douglass*and *E. A. Ferguson,*for plaintiff in error:

I. There was no dedication by Schroeder and Wilson, and no intention to make one, except upon conditions which were not fulfilled during their ownership of the land from which the street or road was to be taken. The agreement between them was for a private way, and as the village had no existence when the agreement was made, and neither party to it had acted on it, no private way having been opened, and as one had parted with his interest, and the other had died before the village knew that *174there was such a paper, certainly Schroeder’s heirs were not estopped to deny the existence of a road or street. A ■stranger can not be held by, nor take advantage of, an estoppel. *Kitzmiller*v. *Van Rensselaer,*10 Ohio St. 64. Nor had anything been done which in law amounted to a dedication. Whatever may have been the intention, there were no acts, and there must be both intention and acts to create a highway by dedication *in pais. Fulton*v. *Mehrenfield,*8 Ohio St. 440; *Penquite*v. *Lawrence, 11*Ohio St. 274.

The village could not have compelled a performance of the agreement by Schroeder’s heirs, for it was no party to it, nor could Wilson, for he had parted with his interest. But even admitting an equity in the village, Neff being a *bona fide*purchaser, without notice or knowledge, had an equal equity coupled with possession, and would therefore prevail. *Porter*v. *Dunlap,*17 Ohio St. 591; *Williams*v. *First Presbyterian Society,*1 Ohio St. 478.

II. Nor is Neff estopped by the proceedings in the Probate Court; on the contrary, the estoppel is the other way. *Babcock & Co.*v. *Camp,*12 Ohio St. *11; Morgan*v. *Spangler,*14 Ohio St. 119.

III. But admitting there was a highway, there has been no valid assessment made in this case.

Section 26 of the municipal corporation act of 1852 (2 S. -& C. 1501), provides that the charge for an improvement, etc., of a street, shall be either in proportion to the feet •front of the lot or land abutting on such street, etc., or in proportion to the value of such lot or land, as assessed for taxation, etc.

The ordinance directing the improvement in this case does not show how the charge was to be assessed — whether by the foot front or by a per centage on the valuation. 'This must be determined by the council before the improvement is made, or the assessment is invalid. *Folz*v. *Cincinnati,*2 Handy, 262. Saying, as in the ordinance, that it .should be made according to law, is equivocal, as there are ■two modes in which the assessment may be made.

It is claimed, however, that the reference to the ordi*175nance of August 8, 1850, dispels this uncertainty, because that ordinance provides that in all cases the assessment shall be by the front foot.

It becomes necessary, therefore, to inquire whether the ordinance of April 8,1850, was a subsisting legal ordinance when the ordinance directing the improvement to be made was passed on the 29 th of September, 1866. As it was passed before the act of 1852, it was not continued by the one hundred and ninth section of that act, unless it had been “ heretofore lawfully passed.” In other words, unless the act creating the village of Clifton gave power to its council to pass the ordinance of August 8, 1850, the fact that it would have power to pass such an ordinance under the act of 1852 would not validate it or make it one “heretofore lawfully passed.” Now, the only power given in the act to incorporate the town of Clifton, in regard to assessments for improvements, is contained in the third section of that act, passed March 28, 1850 (48 Ohio L. 419).

By the third section of the act incorporating the town of Clifton there was a discretion given to the town council to assess the cost of the improvement in each case as “ nearly equal as possible ” upon the property on the street or road -improved. Instead of exercising this discretion, they adopted an arbitrary and uniform rule for all cases, without regard to the benefits conferred or the relative value of the property to be charged. We claim, therefore, that the ordinance of August 8, 1850, was not a legal and valid ordinance at the time of the passage of the act of May 8,1852, and was consequently not continued by it.

*Jordan, Jordan § Williams, Howard Tilden,*and *Edward Colston,*for defendants in error :

I. On the state of facts in this case there can be no question but that the dedication was complete, and the village vested with full powers over the land dedicated. There was a manifest intention to dedicate; there was an actual dedication, and there was an acceptance by the public. *176*Fulton*v. Mehrenfield, 8 Ohio St; 440; *Penquite*v. *Lawrence,*11 Ohio St. 274.

It is true that the village had no existence at the time of the agreement, but it was unnecessary that it should have. The dedication was to- the public, and whatever form of municipal government there existed, or might thereafter exist, would be authorized to accept the dedication and to enforce the rights of the public. *Williams*v. *Presbyterian Church Society,*1 Ohio St. 478.

The dedication was to the public — to the village — and when accepted, the village, by the very act of acceptance, became a party — ceased to be a stranger.

Neff was not a purchaser without notice. The fact was, that before Neff had parted with value, and before he received his deed, he had actual notice of the dedication, and this notice was sufficient to put him upon inquiry. If he did not inquire, it was his own fault, and he must be held to have been possessed of the same knowledge he would-have had upon inquiry, and his purchase, accordingly, subject to the rights of all other persons. Adams’ Eq. 151, n. 1; Story Eq. Jur., sec. 400, and cases cited.

II Neff is estopped from denying that there was a dedication, *Smiley*v. *Wright, 2*Ohio, 506; 1 Story’s Eq. Jur., sec. 388 ; *Pillage*v. *Armitage,*12 Ves. 84, 85 ; *Storrs*v. *Barker,*6 Johns. Ch. 168, 169 ; *Bright*v. *Boyd,*1 Story, 478 ; Sugden on Vendors, sec. 10, ch. 26; *Liggins*v. *Inqe,*7 Bing. 682 ; 2 Smith’s Leading Cases, 642 ; *Clement*v. *Drugin,*9 Greenl. 9; *McKillip*v. *McIlhenny,*4 Watts, 317; *Stephen*v. *Baird, 9*Cowen, 274; *Dewey*v. *Field,*4 Met. 384; *Pres. Cong.*v. *Williams,*9 Wend. 147; *Bushnell*v. *Church,*15 Con. 419; *Pickard*v. *Sears,*6 A. & E. 469.

III. We claim that Neff is estopped by matter of record, to wit, the proceedings in the Probate Court to condemn a strip of ground to widen this avenue. He was made a party defendant in the proceedings to.condemn. Pie-was, notified that the village claimed to own the avenue, and that it was proceeding to widen and improve it. He claimed in said proceeding that he was entitled to compen*177eation for the strip of land taken from him to widen it. A jury was impaneled, and assessed the compensation to be paid him for the land appropriated. He made no claim to any other land embraced in the avenne. He asked no compensation for any other land. He did not deny the existence of the avenne, and by his silence admitted it. He accepted the compensation assessed by the jury and which the court ordered paid him. It would seem too clear for any elaboration of argument that these proceedings estop him forever from denying the existence of Central avenue, and that it had been dedicated, and its dedication accepted.

IV. The incorporated village of Clifton was originally organized on the 23d of March, 1850, by an act of general assembly. (See first finding.) Such organization continued until the act entitled “ an act to provide for the organization of cities and incorporated villages,” passed May 3, 1852 (2 S. & C. 1493), took effect. By this last-mentioned act, the village was, by mere operation of law, reorganized and made subject to the provisions of said act. (See sec. 1.) Now, the ordinance making the improvement in question was passed by the villag'e of Clifton on September 29, 1866. (See fourteenth finding.) Therefore, to ascertain the source whence the power on the part of the village of Clifton to open said street and make said assessment emanated, we must look into the act of May 3, 1852, before mentioned. We find this power conferred in ample terms by section 26 of said act. (See 2 S. & O. 1501.) So far, then, as there is-any question about the *power*of the village of Clifton to-pass the ordinance in question, it is apparent that said ordinance is perfectly valid.

The mode of assessment, then, determined upon by the-village of Clifton, and prescribed beforehand, was that found in the said ordinance of August 8,1850. The mode pointed out in the ordinance of August 8, 1850, is the mode of assessment by the front foot. We do not propose to discuss the question whether the ordinance of August 8, 1850, was or was not“ lawfully passed.” We do-not deem that ques*178tion material. "Whether that ordinance was legally passed or not; whether that ordinance was or was not obsolete at the time of the passage of the ordinance of September 29,1866, directing the improvement of Central avenue, we apprehend it was, nevertheless, perfectly competent to refer to the mode of assessment pointed out in that ordinance of August 8, 1850, and to adopt it as the mode to be pursued in the present case. This was what was done by the ordinance of September 29, 1866, and the assessment was accordingly made by the front foot. The reference to the ordinance of August 8, 1850, as determining the mode in which the assessment was to be made, dispelled all uncertainty upon that subject, and answers satisfactorily the objection raised on that point by the plaintiff in error.

Rex, J.

The plaintiff in error claims the reversal of the judgment of the District Court upon the grounds :

> “1. That there was no dedication by Sehroeder and Wilson, and no intention to make one, except upon conditions which were not fulfilled during their ownership of the land from which the street was to be taken.

> “ 2. That the plaintiff' in error is not estopped by the proceeding in the Probate Court; and

> “ 8. But, admitting there was a highway, there has been no valid assessment made in the case.”

To the first and second grounds urged, it is a sufficient answer to say, that the facts found by the District Court show, conclusively, such notice to the plaintiff' in error of the claims of the village to the ground appropriated by •Sehroeder for a public highway, and such knowledge, on his part, of the proceeding of its council to grade and improve the same, and of the work being done thereon by the defendants in error, without interference or objection by him, or notice to them of his claim, that he can not now defeat a recovery, by them; of the amount assessed against Ms lots abutting on the street so improved, by setting up •claims which were known to him, or which might have *179been acquired by him, by proper inquiry before the work was commenced.

The contract under which the improvement was made contains a stipulation by which the defendants agreed to rely solely upon the assessment for compensation for the work to be performed under it, and to release the village from all claims on that account, and hence, to permit the plaintiff in error to defeat a recovery on the grounds urged, would, under the facts found, be to aid him in the commission of a fraud upon the defendants in error.

The remaining ground urged is, “ that there has been no valid assessment made in this case.”

Section 26 of the act to provide for the organization of cities and incorporated villages, passed May 3, 1852, as amended May 1, 1858 (S. & C. 1501), provides that for the purpose of defraying the costs and expenses of grading and improving streets, etc., the same shall be assessed in proportion to the feet front of the lots abutting on the street, or to the value of the lots as assessed for taxation under the general laws of the state, as the corporation may determine; and section 30 of the- same act (8. & C. 1505) provides that a municipal corporation may, either by a general or special ordinance, prescribe the mode in which the charge on the respective owners of lots or land, or on the lots or land, shall be assessed and determined for the purposes specified in the act.

From the facts found by the District Court, it appears that before the passage of the ordinance to grade and improve the avenue named, a general ordinance, applicable to all cases in which the council should adopt an ordinance to grade and improve a street, etc., was in force in the village, prescribing that the charge in such cases shall be assessed in proportion to the feet front of the lots abutting on the street so graded, improved, etc., and that the assessment in this case was made in the mode prescribed by this general ordinance.

We are therefore of opinion that the District Court did *180not err in either of its conclusions of law, or in rendering' judgment in favor of the plaintiffs below.

*Judgment affirmed.*

McIlvajne, C. J., Welch, White, and Gilmore, JJ., concurred.