#### Roose, Appellee, *v.*Boyle, Treas., et al., Appellants.

(No 20633

Decided February 21, 1949.)

*388*Messrs. Kuih & Meyers,*for appellee.

*Mr. Richard DeNobel*and *Mr. Roland A. Baskin,*for appellants.

Hurd, J.

This action in equity for injunctive relief originated in the Court of Common Pleas of Cuyahoga County, and is here on appeal on questions of law and fact from a judgment of that court enjoining the collection of municipal special assessments levied by the city of Parma against certain sublots of the Parma Wood subdivision for the cost of installing certain improvements, including paving the streets of the subdivision, sidewalks, water and sewer connections, in the years 1927 and 1928.

The cause is presented to this court for trial *de novo*on the issues made by the pleadings, a transcript of the evidence taken before a master commissioner, and the briefs and arguments of counsel. The record is voluminous, comprising six volumes of evidence, both documentary and oral. Limitations of time and space prevent a discussion of this evidence in detail.

The plaintiff contends that the amount of the assessments levied against each of the sublots exceeds the fair market value of the land after such improvements had been installed. The plaintiff contends further that ■such assessments, because of the amount thereof on each sublot, constitute the taking of his property without due process of law and are confiscatory and in violation of his constitutional rights as contained in Section 19, Article I of the Constitution of the state of Ohio, and the Fourteenth Amendment to the Constitution of the United States.

The defendants deny these contentions of plaintiff and by way of amended answer and argument, both oral and by brief, say that while there are minor is*389sues, the main issues in this cause are (1) whether the plaintiff can add together the several assessments against his property and claim that each individual assessment is invalid, if in fact he is able to establish that the total assessments equal or exceed the value of the property assessed after the installation of the improvements, and (2) whether the fair market value of the property exceeds substantially the total assessments after the installation of the improvements.

The defendants raise other questions, claiming that neither the plaintiff nor his predecessor in title filed any objections to any of the improvements or assessments and that no objections had been made to such improvements or assessments by any one until the filing of this action; that the annual installments of the assessments levied for improvements were paid for several years, or contracted to be paid pursuant to land contract between plaintiff’s predecessor in title and various persons; that the improvements were made pursuant to petition filed with the city of Parma requesting it to install such improvements, which petition waived all assessment limitations and various notices required by law, including the notices required by Sections 3818 and 3895, General Code; that all the owners who were affected by the various improvements petitioned for such improvements; that the plaintiff is barred by the statute of limitations from bringing this action and is particularly barred by the statute of limitations from bringing this action to enjoin the collection of installments of special assessments which became due and payable more than four years prior to the commencement of this action; and that the plaintiff, or his predecessor in title, in requesting the improvements or in failing to halt such improvements before they were begun, or in failing to object to such improvements or assessments, or by *390their acts, is guilty of laches and is now estopped to claim that such assessments are illegal.

Finally, the defendants argue that the claims of plaintiff should not be approved by a court of equity because plaintiff purchased the property in question some fifteen years after the improvements were installed, by deed assuming and agreeing to pay such assessments; that to approve or grant an injunction at this time, in view of all the circumstances, would enable plaintiff to cast thé burden of paying these assessments upon the general taxpayers “while at the same time reaping a huge profit for himself and others who will be encouraged to bring similar suits. ’ *’*

The plaintiff is the owner of 166 sublots fronting on Dawnshire drive and Redfern road in the Parma Wood allotment. The record discloses that he purchased these lots in November 1943, and by deed assumed and agreed to pay all the assessments of every .kind and description due or to become due against such subiots. The deed carried revenue stamps of $9.35, which naturally leads to the conclusion that he paid an average of approximately $53 for each of the sub-lots. Instead of paying the assessments, as agreed by deed, plaintiff brought this action within five months from the date of acquisition of the sublots to have the assessments declared void and to enjoin their collection, the petition having been filed April 6, 1944.

•The record further indicates that the Parma Wood Company, the original owner, on March 15, 1926, filed a plat of the subdivision which is recorded in volume 96 page 32 ■ of Cuyahoga county records. The subdivision as platted has 319 lots and includes the two main streets of Dawnshire drive and Redfern road hereinbefore noted.

There appears in the record a letter from the engineer of the then village of Parma, dated March 9, 1926, addressed to the council of the village reporting that *391improvement petitions had been filed by the Parma Wood Company, owner of the subdivision, requesting installation of water and sewers on Dawnshire drive and Redfern road. It appears from the record also that there are letters dated May 21, 1928, from the village engineer reporting to the council of the municipality that sidewalks had been petitioned for by 98 per cent of the property owners on Dawnshire drive, and 100 per cent of the property owners on Redfern road. Also in the record are petitions filed by the Parma Wood Company requesting installation of pavements on Dawnshire drive and Redfern road at the sole cost to that company, whereby the assessments and other limitations are waived. These petitions are signed by the Parma Wood Company, per L. G. Oollister, president, and W. P. Edmonton, secretary, with the corporate seal of the corporation attached, and are a part of the records of the municipality.

Authority for these petitions is found in Section 3836, General Code, which provides that a municipality may assess the entire cost of the improvements, if such petition is filed, signed by three-fourths in interest of the property owners or the owners of 60 per cent of the frontage abutting on the streets improved. Otherwise the municipality is required to pay at least 2 per cent of the cost of improvements and the cost of intersections. See Section 3836, General Code,1 and Section 3820, General Code.2

*392Thereafter, on May 3, 1926, resolutions of necessity were adopted by the council of the village of Parma for water and sewers on Redfern road and Dawnshire drive. On December 22, 1926, resolutions of necessity were adopted by the municipality for pavements on the same streets and thereafter on May 21, 1928, resolutions of necessity were adopted for sidewalks on these streets.

According to the record all these necessity resolutions provided for the entire cost of the improvements. This action could not have been taken by the council without the filing of petitions, for the improvements signed by the required number of property owners. There is, in law, a presumption of regularity in respect of such official acts, and there is nothing in the record indicating anything to the contrary.

The record shows also that ordinances to proceed with the improvements were adopted as follows: Water and sewer, May 24, 1926; pavement, January 17, 1927; sidewalks, June 11, 1928.

Pinal estimates were paid to contractors in the year 1928 as follows:

Dawnshire drive water and sewer Peb. 20, 1928

pavement Sep. 4, 1928

sidewalk Nov. 10, 1928

Redfern road water Nov. 7, 1927

sewer Sept. 6, 1927

pavement Oct. 15, 1928

sidewalk Nov. 10, 1928

After the improvements were installed, assessments therefor were levied for each improvement based on the actual cost, made payable in ten annual installments, and certified to the county auditor for collection on the tax duplicate. Thereafter in the year 1938, pursuant to applicable sections of the General Code, *393the municipality refunded all its special assessment bonds including the assessment bonds for the improvements on Dawnshire drive and Redfern road, and on January 3, 1939, pursuant to the provisions of Sections 2293-5p and 2293-5g, General Code (116 Ohio Laws, pt. 2, 116), it respread all its unpaid assessments.

The record further indicates that the individual amount assessed for water, sewer, pavement and sidewalks against the sublots in question were on an average per lot as follows:

Dawnshire drive water $112.80

sewer 236.23

pavement 259.63

sidewalk 42.99 $651.65

Redfern road water $110.75

sewer 191.15

pavement 268.09

sidewalk 45.26 $615.25

From the foregoing detailed factual history, it appears to us as an inescapable conclusion that the improvements installed were made upon the petitions of the plaintiff’s predecessors in title, whereby the predecessors in title were bound by agreement to pay for the improvements in accordance with the provisions of the resolutions and ordinances adopted by council. Therefore it appears to us that the plaintiff, who purchased these sublots some fifteen years after the improvements were installed, does not occupy any better position than his predecessors in title upon whose petitions the improvements in question were installed in the first instance. If the owners who successfully petitioned council to have these improvements installed had brought suit immediately after their in*394stallation, to abrogate tbe assessments and enjoin the collection thereof, they could not have been beard to complain as they would then have been estopped by their own 'conduct from so doing.

The record shows further that the plaintiff, in attempting to determine the cost of improvements under its claim of confiscation, is treating interest as part of the assessment in arguing for assessment limitations. This position we believe is untenable in view of the holding of the Supreme Court of Ohio in the case of *Wilcox*v. *Village of Edgerton,*103 Ohio St., 267, 133 N. E., 78, the syllabus of which is as follows:

‘‘Where a statue limits the assessment for local improvements to thirty-three and one-third per cent of the actual value of the property so assessed after the completion of such improvement, and the village council pursuant thereto, by ordinance, fixes the mode of payment either in cash within twenty days, or in' ten annual installments, at the option of the property owner, such installments to bear the same rate of interest as the bonds issued in anticipation of the collection of the assessments: *Held:*Upon the owner’s own election to pay in ten animal installments, the interest charges upon such installments are not in violation of Section 3819, General Code, so long as he was given the option of paying it all in one payment, within the thirty-three and one-third per cent.”

See, also, the dictum of the court at page 270.3

We conclude from the foregoing that, in considering the costs of improvements where the same have been petitioned for and the owner has the option of paying *395in cash within thirty days or in ten equal installments with interest, the added interest may not be considered as a part of the cost of the improvements when considered in relation to the value of the property where it is claimed that the cost of the improvements is confiscatory. - .

Next, it will be noted that plaintiff proceeds upon ■the theory that he may cumulate the costs of all the improvements and then by adding together all the separate assessments levied against the property, regardless of the amount and time when levied, and if and when the total amount assessed equals or exceeds the market value of the property after the improvements are installed, claim that each and every assessment is as to him null and void. This process of rationalization by retrogression cannot stand the test of law or logic. Bearing in mind that plaintiff’s predecessor in title petitioned for these improvements, such a process of reasoning would eventually reach a point-of *reductio ad absurdum.*By such a method, property owners petitioning for improvements in number and amount sufficient to equal or exceed the value of their property could, when the saturation point was reached, escape the obligation of paying for the same by casting the entire burden upon the general taxpayers.The law never intended such result. Certainly the great powers of a court of equity should not be invoked by the injunctive process in support of such a plea.

Counsel point to and rely upon the case of *Domito*v. *Village of Maumee,*140 Ohio St., 229, 42 N. E. (2d), 984, as authority for their contention that the assessments here are confiscatory and should be abrogated by the injunctive process. We consider that the *D omito case*stands as the highest authority under the facts there presented but it is our considered opinion *396that there is a clear and unmistakable distinction between the facts of the *Domito case*and the facts of the instant case.

In the first place there is nothing in the opinion showing that the improvements in the *Domito case*were made upon the petition of three-fourths in interest or of 60 per cent or more of the owners of .foot frontage abutting upon the street in question. The case is authority for the proposition that an assessment levied against private property cannot equal or exceed the value of the property after the improvement is made, but it is not authority for the proposition that cumulation of separate valid assessments levied over a period of time will eventually invalidate all the assessments. It is clear from an examination of the case that there were two assessments, one by the county and one by the city. It is only the city assessment which was held void *ab initio.*The county assessment was not invalidated. Consequently the *Domito case*cannot be relied upon as authority for the theory contended for here, namely, that if the total of all separate assessments for the various improvements equals or exceeds the value of the property assessed then each and every individual assessment thereby becomes invalid or void *ab initio.*

The second paragraph of the syllabus in the *Domito case*is also authority for the proposition that failure to make written objection as provided by law after notice of the improvement and the amount levied therefor precludes the owner from escaping payment by asserting noncompliance with statutory requirements on the part of the assessing body, although it does not estop him from resisting collection on a constitutional ground. We wish only to point out here that the time has long since passed when any attack could be maintained against the assessments in ques-*397lion here upon any statutory ground. Therefore, we must accept the proceedings in respect thereof as regular and in accordance with all statutory requirements.

We shall next consider the question of the claim of the plaintiff that the amount of the assessments levied against each of the sublots exceeds the fair market value <of the land after the improvements have been, installed.

We have examined the record carefully on this subject, have weighed the testimony of the experts who-testified upon the trial of the case, and have reached the considered conclusion that the plaintiff has failed to establish the allegations of his petition in this respect by a preponderance of the evidence. On the contrary, we find that the preponderance of the evidence on the question of valuation is definitely in favor -of the defendants.

Not only do we find that the testimony of defendants'’ experts both in direct examination and on cross-examination is more credible, reasonable and probable than that of plaintiff’s expert witnesses, but we find other facts in the-record which materially substantiate the expert testimony proffered by the defendants showing that the value of the land was substantially in excess of the cost of the improvements after the same were installed, even if we were constrained to accept the theory of cumulation of costs contended for by the plaintiff. The testimony of defendants’ experts as to the market value is substantiated by other sales and purchase-money mortgages as disclosed by the county records against other property in the vicinity. The land contracts of 1928, 1927 and 1928 for the sale of property in the Parma Wood subdivision likewise may ■ be considered as corroboration of the defendants’ expert testimony. Also, a first mortgage in 1927 to the *398United Banking *&*Trust Company (later The Central National Bank) in the sum of $76,400 on the property of the Parma Wood Company covering' 191 lots, is independent, disinterested and cogent evidence indicating values as of that time. There is also supporting evidence in the-form of a bank appraisál in the year 1927 covering lots in the subdivision, which indicates that the. value of the land at the time was greatly in excess of the cost of the improvements installed.

Therefore, we conclude that by the greater weight of the evidence before us, as shown in the record, the value of the sublots was shown to be considerably in excess of the cost of the improvements when such improvements were installed.

In conclusion it appears to us that the transaction of plaintiff in the purchase of these properties and in prosecuting this suit bears all the aspects of a speculative venture which, if successful, would enable the plaintiff to gain substantial profits at the expense of the general taxpayers.

In view of the foregoing, we find it unnecessary to pass upon the other defenses pleaded in the amended answer of the defendants. In our opinion, which is contrary to that of the trial court, the plaintiff has failed to establish a clear right to the injunctive process and his petition for injunction should be denied. Consequently we conclude that all the equities are in favor of the defendants and that the finding and decree should be for the defendants.

*Decree for defendants.*

Skeel and Nichols, JJ., concur.

Nichols, J., of the Seventh Appellate District, sitting-by designation in the Eighth Appellate District.

1

Secfcion 3836. “When a petition subscribed by three-fourfclis in interest ■of the owners, or the owners of sixty per cent of the frontage of property abutting upon a street, alley, or highway of any description between designated points in a municipal corporation, is regularly presented to the council for that purpose, the entire cost of any improvement of such street, alley, or highway, including the cost of intersections and regardless of the limitations of Section 3820 of the General Code and without reference to the value of the lands of those who subscribed such petition, may be assessed and collected in equal annual installments, proportioned to the whole assessment, • in a manner which may be fixed by the council * * *. The interest on any bonds issued by the corporation, together with the annual installments herein provided for, and the cost of such proceedings and assessments, shall be assessed upon the property so improved. * *****’

2

Section 3820. “The corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council deems iust, which part shall be not less than one-fiftieth of all such cost and expense, and in addition thereto, the corporation shall pay the cost of intersections ’ ’

3

Wilcox v. Village of Edgerton, 103 Ohio St., 267, at page 270: “It is all left to the owner’s option, whether he prefers time with interest or cash without interest. The assessment of cash without interest is made by the village. The ten installment assessment with interest is made by the owner: •that is, he elects so to pay. For the favor of the time he assumes the burden of interest as fixed in the ordinance. He cannot complain at his own election, since, had he so desired, he might have paid the whole assessment in a bnm> sum within the statutory limitation of 33 1/3 per cent.”