Opinion
No. 84-1817
Decided October 30, 1985.
Water and watercourses — Ditch assessments — County formula valid, when — Assessment proportionate to benefits received — Appeal to court of common pleas — Burden on landowner.
O.Jur 3d Drainage §§ 79, 84, 136.
1. The use of a county formula, which gives a rational and justifiable basis to the calculation of a ditch assessment consistent with the applicable and controlling sections of the Revised Code, is valid where the assessment levied is proportionate to the benefits received from the improvement.
2. In an appeal to the court of common pleas from an order of the board of county commissioners approving a ditch assessment, the burden is properly on the appellant-landowner, at the trial de novo, to demonstrate the unlawfulness of his assessment.
APPEAL from the Court of Appeals for Seneca County.
This appeal arises from a decision of the court of appeals approving a final schedule of assessments made by the board of county commissioners for a ditch improvement.
In 1975, this ditch improvement was petitioned by landowners in the Morrison Ditch watershed area of Seneca County. At the time of the petition, that portion of the ditch upon the lands of Floyd and Rita Meyers, appellants herein, was virtually obliterated and had been cultivated and planted.
The Seneca County Engineer calculated the assessments for the ditch improvement, applying the so-called "Preble County" formula, and submitted his report to the Board of County Commissioners of Seneca County, appellees herein, in January 1981. Many of the landowners, including appellants, hired a private excavator to make improvements in an effort to reduce the assessments.
The "Preble County" formula is a complex and detailed series of calculations involving numerous factors and was first published by the County Engineer of Preble County. Yost, Rational Determination of County Ditch Assessments, Ohio County Engineers News (Nov. 1979).
In the instant case, the elements used in the calculations of this formula were adapted to the peculiarities of Seneca County in determining appellants' assessments.
These landowners appealed to the Court of Common Pleas of Seneca County which ordered the county engineer to make a second assessment taking into account the excavation work. The excavations, however, proved insufficient and the second schedule of assessments was not significantly lower than the first. Appellees then approved the new assessments.
The appellants, who owned approximately ten percent of the affected acreage, were assessed approximately thirty-six percent of the total project cost. They again appealed to the common pleas court, claiming their assessments were unconstitutionally disproportionate to the benefits which they received. Appellants also contended that the formula used to calculate the assessments did not properly determine benefits as required by R.C. 6131.15 and 6131.01.
After a trial de novo, the court entered its findings of fact and conclusions of law approving the assessments and specifically approving the "Preble County" formula as a reasonable method of determining benefits.
On appeal, appellants again attacked the formula used to calculate assessments and again claimed that their assessments were unconstitutionally disproportionate to the benefits received. Appellants also contended that the trial court erred in placing the burden of proof upon them at the trial de novo. Appellees argued that the formula used to calculate the assessments was valid and that appellants' assessments were not disproportionate. Appellees further argued that the burden of proof was properly upon appellants.
The court of appeals affirmed the judgment of the trial court, reasoning that the factors used in the "Preble County" formula were consistent with "benefits" as defined by R.C. 6131.15 and 6131.01. The court of appeals further held that appellants had not sustained their burden of proof in showing disproportionate assessments, as their lands had most needed the ditch improvement and received the greatest benefits thereby.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Buchanan Buchanan and J. Vincent Buchanan, for appellants.
Steve C. Shuff, prosecuting attorney, and Elaine J. Knutson, for appellees.
The question presented involves the constitutionality of a ditch assessment calculated by using the "Preble County" formula. Appellants contend that two factors in that formula, "degree of need" for improvement and "degree of problem correction," violate the applicable statutory and constitutional requirements for ditch assessments.
This court stated in In re Appeal in the Joint Cty. Ditch No. 1 (1930), 122 Ohio St. 226, 236, that an assessment disproportionate to the benefit received was in effect an unconstitutional taking of private property. R.C. 6131.15 states, in pertinent part, that "* * * [t]he county engineer, in making his estimate of the amount to be assessed * * * shall levy the assessments according to benefits. Each tract of land * * * affected by an improvement * * * shall be assessed in the proportion that each is benefited by the improvement, as `benefit' and `improvement' are defined in section 6131.01 of the Revised Code, and not otherwise."
R.C. 6131.01(F) defines "benefits" as advantages to land and owners and provides that "* * * [f]actors relevant to whether such advantages result include:
"(1) The watershed or entire land area drained or affected by the improvement;
"(2) The total volume of water draining into or through the improvement and the amount of water contributed by each land owner;
"(3) The use to be made of the improvement by any owner * * *."
This subsection further provides that "benefits" may include any or all of the following: Elimination or reduction of flood damage; removal of water conditions that jeopardize public health and safety; increased value of land as a result of the improvement; use of water for irrigation or soil conservation; and providing an outlet for accelerated runoff.
We find that the formula used in calculating appellants' assessments accurately determined the assessments in proportion to the benefits accruing to appellants' lands. The evidence adduced at the trial de novo clearly showed that the portion of the ditch upon appellants' lands was most in need of drainage and required the highest degree of correction. Appellants' portion of the ditch was almost completely closed and had been plowed and cultivated. Their lands had the most extensive flooding and soil erosion after a rain. Although the "degree of need" and "degree of problem correction" elements of the formula are not per se enumerated by R.C. 6131.01(F), these elements are consistent with the statutory factors relevant to whether advantages result from improvements. Such resulting improvements reduce flood damage and increase the value of appellants' lands, both "benefits" as defined by statute. These elements are further consistent in view of R.C. 6131.15, which states that in estimating an assessment, the county engineer shall give primary consideration to the potential increase in productivity of the land which may result from the improvement. It is obvious that the improvement of this ditch will result in the increased productivity of appellants' lands.
We therefore conclude that the use of the "Preble County" formula gave a rational and justifiable basis to the calculation of appellants' ditch assessments, consistent with the applicable controlling sections of the Revised Code, and demonstrated an assessment in which appellants' greater need was proportionate to their greater benefits from the improvement.
Appellants also contend that the trial court erred by placing upon them the burden of proving, at the trial de novo, that their assessments were not in proportion to the benefits received. Appellants argue that once they made a prima facie showing that the assessments on their lands were substantially in excess of the other landowners' assessments, the burden of proof shifted to appellees to rebut this evidence. This contention is without merit. R.C. 6131.25 provides the mechanism for an appeal of an assessment to the court of common pleas. R.C. 6131.30 explicitly states that on appeal "* * * the burden of proof shall be on the owner having the affirmative of the proposition, who shall have the opening and closing. * * *" Accordingly, the burden was properly upon appellants here throughout the trial de novo to demonstrate the unlawfulness of the assessments.
For the reasons stated, the judgment of the court of appeals is affirmed.
Judgment affirmed.
SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.