Hendrickson et al v. City of Toledo et al. [Vol. III, N. S.

4. Where property owners declare in a petition for a street improvement that they believe their property will be benefited thereby, and subsquently seek to enjoin the collection of the assessment on the ground that they were not specially benefited, the burden is upon them to show a failure of benefits, if indeed they are not estopped from claiming a failure of benefits.

PARKER, J.; HAYNES, J., and HULL, J., concur.

This case is here on appeal. The action was brought to enjoin the collection of assessments made upon the lands of the plaintiffs on account of the expense of extending Colfax street, in the city of Toledo, the expense assessed being the cost of the lands acquired by the city for the extension of the street, i. e., the expense incident to the acquisition of these lands by appropriation proceedings.

Plaintiffs contend that this is an illegal assessment, relying upon the decision of C., L. & N. R. R. Co. v. Cincinnati, 62 Ohio St., 465, which overrules Cleveland v. Wick, 18 Ohio St., 303, and holds that so much of Section 2284, Revised Statutes, as provides for the assessment of this kind of expenses upon lands benefited is invalid.

Plaintiffs do not aver in their petition in this case that the improvement was not petitioned for by them or others in accordance with the requirements of Section 2267, Revised Statutes, which section requires that as a condition precedent to levying an assessment upon lands to be benefited, there shall be a petition signed by two-thirds of the owners of the lands to be charged. It is averred in the petition, however, that the assessment of this cost was not made by a jury, as provided by Chap. 3, Tit. 12, Div. 7, Revised Statutes, but that the city instituted an action for the appropriation of this property in the probate court, where a jury was waived, or was not called, and that by agreement or consent the value of the two pieces of land taken was fixed at $1,500-$600 to one proprietor and $900 to anotherand that thereupon judgment for the payment of this amount was entered.

It is said that this action was irregular, and rendered the proceedings invalid, so that even if there were no other objection, the assessment ought not to stand. The petition also avers that

the lands or lots of the plaintiffs upon the street were not specially benefited by the improvement, and that therefore they could not be assessed.

The answer admits the averments of the petition as to the various steps taken by the common council in establishing this improvement, the opening up of this street, and the appropriation of the property for the improvement. It denies that the plaintiffs were not specially benefited; it denies in effect that there were any irregularities in the proceedings in the probate court; and it avers with respect to the petition for this improvement as follows:

"Further answering, these defendants say that prior to the time of the adoption of the resolution, the plaintiffs herein, or their grantors, filed a petition in writing with the common council of the city of Toledo, praying the said city of Toledo to enact the necessary legislation for the appropriation and condemnation of the property necessary for the extension of said Colfax street as aforesaid, and consented therein that an assessment might be made by the said city of Toledo upon the lands of said petitioners to defray the cost and expense, including all awards arising out of, or resulting from, the condemnation and appropriation of said property; that said parties so petitioning the said city of Toledo knew at the time of the filing of said petition with the common council of said city, that if said improvements were made, all of the property abutting upon said. Colfax street when opened and extended, as petitioned for, would be assessed for the appropriation and condemnation of said property, in proportion to the special benefits conferred thereby; that the said city of Toledo enacted said legislation in pursuance of and in reliance upon said petition, and in reliance upon their right to assess the cost and expense occasioned thereby upon all the real estate bounding or abutting upon said Colfax street when so opened and extended as aforesaid; that these plaintiffs knew at the time of the filing of said petition with said common council that said property so bounding and abutting upon said Colfax street would be specially benefited by the making of said improvement over and above the general benefit that would result to the remainder of the said city of Toledo therefrom."

These averments of the answer are denied by the reply; so that it will be observed that the issue as to whether the plaintiffs signed the petition for this improvement is raised by the answer and reply.

Hendrickson et al v. City of Toledo et al. [Vol. III, N. S.

The evidence upon the issues as made by the pleadings has been submitted to this court. Plaintiffs contend that it does not appear from this evidence that they or their grantor petitioned for this improvement.

Exhibit 1 introduced in evidence, consists of two sheets, with a paper back, upon which back appear several endorsements. The first sheet is a petition which (omitting a part of the heading, which can not be made out on account of the way it is pinned in) reads as follows:

"To the Hon. The Common Council of the City of Toledo:

"Gentlemen-We, the undersigned, owners of the property described opposite our respective names, the same abutting on Colfax street and Colfax street extended, between Shaw avenue and Lawrence avenue as indicated, desiring that Colfax street may be opened and extended from the present terminus of said Colfax street at the west line of Shaw's Monroe street addition to Lawrence avenue, and believing and acknowledging that our respective properties would be specially benefited thereby, respectfully petition your honorable body to cause the same to be so opened and extended, and that you pass the necessary legislation and cause proper appropriation proceedings to be had therefor, and we further request that a special assessment be made to pay the cost and expense thereof, upon the property abutting upon said Colfax street and Colfax street extended, between Shaw avenue and Lawrence avenue, and consent and request that our respective properties may be so assessed.

"Respectfully submitted."

This is signed by twenty petitioners. Appended is a notation that there are twenty-nine land owners upon the street, and that there is a majority of five signing the petition. It is admitted that seven of the plaintiffs-Dale, Wilkinson, Miller, Hough, Van Hellen, Ott and Yearick-signed this petition, and it is also shown that the grantor of Emma C. Caldwell, who owned the property at the time this improvement was made, signed the petition. With respect to the other plaintiffs-Kate Hendrickson, Ada S. Long and Michael Murphy-there is no evidence. tending to show that they or their grantors signed the petition; and it is conceded that the evidence shows that they did not.

The second sheet of this exhibit is a resolution in the ordinary form, declaring the intention of the city to open and extend

Colfax street from Shaw avenue to Lawrence avenue, and that appears to have been adopted, according to the notation upon it, March 21, 1898. It is indorsed by a stamp by David McAllese, president of the board of councilmen, and J. Charles Meissner, president of the board of aldermen, and attested by Lem. P. Harris, city clerk. The backs of these two sheets contain various endorsements, to the effect that the resolution mentioned was adopted by the board of aldermen and the common council in 1898. There are also upon it notations indicating, as explained by the city clerk, who was a witness, that this paper had been referred to certain committees of the common council. The first sheet, viz., the petition, contains this endorsement:

"I, William A. Mills, City Solicitor of the City of Toledo, Ohio, hereby certify that I have examined the above and foregoing petition, and that I approve the same.

"WM. A. MILLS, City Solicitor."

Originally that contained the additional words, "the 2d day of September, 1897," but a pen was run through that part of it for some reason not explained.

The city clerk testifies that this paper, consisting of the various sheets, was found in the office of the city clerk by him, in the usual and proper place for petitions and resolutions, and that both of the papers have been duly recorded in the course of proceedings for the opening up of this street, in the respective volumes of records provided for the recording of such papers; that as a rule and custom of the office, and of the council, a petition like unto this, is first presented, and then a resolution is prepared, if upon examination it is found to have been certified thereon by the city solicitor that the petition is in due form and contains the necessary names; that when he found the paper these various sheets were fastened together in the form in which we now have them. There is no evidence submitted tending to show that the usual course to which he now testifies was not pursued in this case. There is no evidence tending to show that this petition was not a part of the papers fastened together as we now find them, at the time the resolution was adopted by council, and at the time the various proceedings were taken for the appropriation of this property and the opening up of this

Hendrickson et al v. City of Toledo et al. [Vol. III, N. S.

street. The presumption of the continuance of things as found alone would require us to hold, in the absence of any evidence to the contrary, that the original form of the paper was as we find it, all these sheets being fastened together and having this back on them.

The petitioners admit that they signed this petition, and that it was signed by them sometime prior to this action by the council; they think prior to the year that the council took action upon it. There is evidence that they also signed another petition asking for substantially, if not exactly, the same thing; and another petition is presented here, and witnesses are questioned about it. That petition answers to the description given by the plaintiffs of that which they signed, and which appears to have been signed in the year 1892.

We think there is no evidence to impeach this document, and no evidence authorizing us to find that the petition was not originally a part of the document. We therefore do find that the petition was a part of the document, and was attached to the resolution, and that it was upon the faith and authority of this petition that the council proceeded to make this improvement.

As to the question whether there was irregularity in the action in the probate court, the confessing of judgment for $1,500, instead of impanneling a jury, and submitting evidence, and requiring a verdict of the jury awarding the amount. It is not averred that there was any fraud, or collusion, or unfairness in this transaction; it is not averred that the amount for which there was a confession of judgment, or which it was agreed should constitute the amount of the award, was excessive in any degree; or that these plaintiffs were in the slightest degree prejudiced in any way by this action.

It seems to us that the city acted substantially in the capacity of a trustee for the petitioners in acquiring the property necessary for the improvement that they petitioned for. They had agreed that the expense should be assessed upon their property, and therefore it devolved upon the city to exercise good faith to undertake to preserve and to protect the rights of the petitioners, but in the absence of any averment of any wrong or any