Lathrop v. Kilbury , 1923 Ohio Misc. LEXIS 1876 ( 1923 )

KINKADE, J.

Epitomized. Opinion

Plaintiff brought an action in Common Pleas Court to restrain the collection of an assessment which was made according to benefits by "the County Commissioners upon the lands of plaintiff for the construction of a road running from Sylvania to Berkey. The plaintiffs claimed in their petition "that "the assessment was void by reason of the failure of the commissioners to follow the provisions of the statute in fixing the assessment. The defendants filed a general denial. As consideration complaints were made about the assessments a special commissioner was appointed to hear the evidence and to report his conclusions of fact and law separately. The road in question was within half a mile of the Michigan state line on one side. As neither the defendants or plaintiffs were satisfied with these findings exceptions were filed thereto and motions for rehearing. The case was heard in the Court of Common Pleas where the findings of the commissioner were sustained in part and overruled in part. Both parties then prosecuted error to the Court of Appeals. In modifying the judgment of the Common Pleas Court, the Court of Appeals held;

1. Method used in arriving at an equitable adjustment of cost of the’ improvement was proper considering all the circumstances of the case.

2. Although Sec. 6919 provides that the improvement must follow the central thread of the assessment zone, the Legislature did not intend that no

■ road improvement could be made where it was impossible to have an assessment zone with an equal amount of proptrey on each side of the improvement.

3. The court is only authorized to change an assessment by public officials that has been made which is clearly and manifestly apparent from the evidence that an injustice has resulted to the property owners; and as no such injustice appears to have been done here, the assessment was proper.