Harper v. Cleveland, C. C. & St. L. Ry. Co. ( 1928 )

HAMILTON, PJ.

While the court cannot say from the evidence to what use the land may be put, under the rule ,of potential benefit, which makes abutting property subject to assessments, we are of opinion that some assessment on this property is sustainable.

We are in accord with the decision of the Court of Appeals of the Sixth District, in the case of New York Central Rd. Co. v. Village of Port Clinton, Ohio, decided October 15, 1919, wherein the Court said: “The main tracks of the plaintiff company in the case at bar being permanently devoted to railroad purposes and the paving of North Railroad Street being of no benefit to the company insofar as said tracks are concerned, no lawful authority existed in the Village to assess such portion of the plaintiff’s property.”

While it is the law of Ohio that property cannot be assessed in excess of benefits, we are of opinion that, under the record in this case, there is a benefit outside of the right of way covered by the main tracks of the Railroad Company, and subject to assessment.

The Court of Common Pleas was in error in holding that no assessment could be sustained.

The judgment of the Court of Common Pleas will be reversed, and the cause remanded to the Court of Common Pleas of Hamilton County, Ohio, for further proceedings according to law.

(Mills and Cushing, JJ., concur.)-