Opinion
Decided December 18, 1929.
Municipal corporations — Assessments — One-third land value exceeded — Section 3819, General Code — Value of land a judicial question for court — Injunction.
In a suit by a property owner, immediately after the completion of a given improvement, to restrain the collection of an assessment in excess of thirty-three and one-third per cent. of the value of the landowner's premises, as prohibited under the provisions of Section 3819, General Code, the value of the premises becomes a judicial question to be determined by the court from the evidence. (Rogers v. Johnson, Treas., 21 Ohio App. 292, 153 N.E. 167, and Baltimore Ohio Rd. Co. v. Village of Oak Hill, 25 Ohio App. 301, 157 N.E. 817, distinguished.)
APPEAL: Court of Appeals for Jackson county.
Mr. E.E. Eubanks, for plaintiff.
Mr. Frank DeLay, city solicitor, for defendants.
This action was brought by Robert S. Campbell against the city of Jackson and others to restrain the collection of an assessment of $525 for grading, paving, and improving 502.5 feet of State street, abutting on seven acres of land owned by plaintiff in said city. It is alleged that the actual value of the premises immediately after the completion of the improvement was but $700, and that the assessment exceeds thirty-three and one-third per cent. of the actual value of the premises. The answer is in effect a general denial of the material allegations of the petition. A decree was entered in favor of the plaintiff in the common pleas court, and an appeal was taken by the defendants to this court.
The question to be determined is whether the assessment exceeds thirty-three and one-third per cent. of the value of the plaintiff's premises immediately after the completion of the improvement in question, as prohibited by Section 3819, General Code. The defendants resist the reduction of the assessment upon plaintiff's property, relying to some extent upon the attitude taken by this court in Rogers v. Johnson, Treas., 21 Ohio App. 292, 153 N.E. 167, and Baltimore Ohio Rd. Co. v. Village of Oak Hill, 25 Ohio App. 301, 157 N.E. 817. In those cases we held that the value of the benefits conferred upon land subject to assessment was not, generally speaking, a judicial question, and that it was only when the assessment amounted to a confiscation of property that a judicial question arose. That is not the case at bar. We are not asked, nor do we undertake, to determine the amount or value of the benefits conferred upon the plaintiff's property. We have to determine the altogether different question of the value of the plaintiff's land. That being determined, the statute fixes the limit of an assessment that can be made on it to one-third the value of that land, regardless of the amount of benefits that may really accrue. In the Oak Hill case this was recognized, but this court found that there was no evidence to show what the value of the railroad property actually was. In the instant case there is testimony tending to show what the value of the plaintiff's property is. Under the statute limiting assessments to one-third of the value of the property, as improved, there arises a judicial question as to the value of the plaintiff's property.
The evidence is conflicting. The discrepancies are due to the opinions held by the various witnesses as to the reasonable use that could be made of the premises. Speculations and remote possibilities should not be considered. The test of value here is the reasonable and likely adaptability of the land. Questions asked of witnesses regarding the basis of their opinions are not for the purpose of permitting this court to independently arrive at a valuation of the land, but are solely for the purpose of determining the weight to be attached to the testimony of each witness.
The members of this court have viewed the improvement and premises in question so as to better understand and apply the testimony of the witnesses. Upon a consideration of that testimony, we are inclined to the view that the value placed by the plaintiff's witnesses more truly represents the value of the premises in question, and we agree with the lower court that the value of said premises immediately after the improvement was completed did not exceed the sum of $750 and that the assessment of $525 is in excess of one-third of such value.
A decree will be entered in accordance with the prayer of the petition enjoining the collection of an assessment in excess of $250 against the premises of plaintiff.
Decree for plaintiff.
MIDDLETON, P.J., and MAUCK, J., concur.