Vol. IX. Superior Court of Cincinnati. goods, even though that name is not the only name by which the goods of the first trader have been known, or although it has always been used in conjunction with some other words. The rule then announced as to trade-marks applies equally to trade names. Injunction is allowed as prayed for. Sage & Hinkle, Counsel for Plaintiff. Logan, Randall & Logan, Counsel for Defendants. STREET ASSESSMENTS. [Superior Court of Cincinnati, Special Term, 1881.] CITY OF CINCINNATI V. WILDER ET AL. 1. Owners of property abutting on a street are not relieved from an assessment made necessary by a change of grade on the ground that they were previously assessed. 2. An assessment is not unconstitutional because levied by the front foot, if equal on every front foot, instead in proportion to benefits. 3. Where an improvement of a certain road was paid for by a tax levied under authority of a statute, which allowed roads to be paid for by a tax levied on all property, personal and real, within a radius of one mile of the road improved, constitutes a special tax and not an assessment. But whether tax or assessment, it was not drawn from abutting lots and lands. FORCE, J. This is an action by the city to collect by enforcing its lien, an assessment upon abutting property, to pay for the improvement of Walker Mill Road. To the amount of $30,000, the action is brought by the city for its own use; for the rest of the amount, it is brought for the use of the contractor who did the work. 728 It is claimed that the assessment being by the front foot, and not purporting to be an assessment in proportion to benefit conferred by the improvement upon the respective lots, the assessment is unconstitutional and void. There is, indeed, language used in the opinion pronounced in Chamberlain v. Cleveland, 34 O. S., 551, which seems to sustain the objection. But assessments by the foot front, equal upon every front foot, have been sustained probably every year since the constitution was adopted, and by every court in the state, and at every term of the supreme court. In some cases the precise point now made has been overruled. In Corry v. Campbell, 25 O. S., 134, a case of assessment by the foot front, evidence was offered by abutting owners to show the amount of benefit received and was excluded; and the exclusion was affirmed by the supreme court. In Cincinnati v. Bickett, 26 O. S., 49, it affirmatively appeared that the lots on one side of the street received greater benefit from the improvement than the lots on the other side. The supreme court held that, notwithstanding this inequality of benefit, the assessment by the front foot must be the same on both sides of the street. In Chamberlain v. Cleveland, the assessment was not by the front foot upon abutting property, but was upon property benefited by the im City of Cincinnati v. Wilder et al. Tol. IX. provement, including property on other streets, and the language in the opinion is perhaps used with reference to such a case. For in a case decided at the same term, Griswold v. Pelton, 34 O. S., 482, the same judge pronouncing the opinion, the right to levy an assessment by the front foot was sustained. And in a later case, Jaegar v. Bare, 36 O. S., 164, the supreme court held that an assessment by the front foot must be unitorm on all the abutting property. The assessment is claimed to be wholly invalid on another ground. The improvement ordered and contracted to be made was not, when the work was begun, a public way; a portion of it was a turnpike. the property of a private corporation. Before work was done on this portion, the city acquired from the corporation the ownership of the turnpike. It is claimed that the city acted without jurisdiction, because a portion of the land on which it resolved to make the improvement was not public property at the time the work was resolved and contracted to be made. I know of no authority or principle sanctioning this claim. The case of Harbeck v. Connelly, O. S., 229, is to a different effect. That holds that where a city without right enters upon private property, confiscates it and constructs a way on it, the city cannot make the owner pay out of the residue of his land for the im- 729 provement so wrongfully made upon the portion of which he was so dispossessed. The legislature, in section 544 of the Municipal Code, now section 2284 of the Revised Statutes, provide for the acquisition by municipal corporations of the title to land over which a street has been ordered to be made, and including the cost of such acquisition in the cost of the improvement. The supreme court in Cincinnati v. Cincinnati and Spring Grove Avenue Company, 26 O. S., 246, a case like the present, while holding that an assessment cannot be levied when the city constructs only so much of the ordered improvement as lies upon land already appropriated, advised the city to acquire title to the land upon which the remainder of the way was laid out and complete it, and then assess for the whole. And it appears, this advice was followed and no objection made in a subsequent case which went to the supreme court, Krumberg v. Cincinnati, 29 O. S., 69. It is further claimed that the assessment is illegal, being in contravention of sections 560 and 561, Municipal Code, now sections 2301 and 2302, of the Revised Statutes. They provide that when a street within a corporation is graded in conformity to grades established by the corporation and the expense is assessed on the abutting lots or lands, the owners shall not be subject to any special assessment occasioned by any subsequent change of grade in such street, and these provisions embrace territory added to the territory by annexation. The grade of the present improvement is a very material change from the surface of the old road, being raised in places more than twenty feet. Many years ago, when Mr. Gest was engineer, the county commissioners established a grade for the road. Subsequently the road was improved by the county commissioners. But, while engineers testifying on the trial differ as to what the Gest grade was or is, the preponderance of evidence is, that it was very different from the grade or surface line of the road as subsequently improved; that the grade varied materially, while the improvement varied little, from the natural surface of the ground. Vol. IX. 730 Superior Court of Cincinnati, The improvement was paid for by a tax levied under authority of a statute, which allowed roads to be paid for by a tax levied on all property, personal and real, within one mile of the road improved. This is a special tax, not an assessment. But whether tax or assessment, it was not drawn from abutting lots and lands. All the lots in the subdivisions through which the road passed were assessed, though separated by platted streets and ranges of lots from the road. The assessment is claimed to be invalid on yet another ground. After the improvement had been recommended, ordered, advertised and contracted for, the grade of a portion of it was changed. The change diminished the amount of embankment required, and thus diminished the cost of the work by several thousand dollars. The change was recommended by the board of improvements, ordered by council and agreed to by the contractor; but there was no advertisement or call for new bids. The work done and for which the assessment is made, is not identical with the work originally contemplated and advertised. An attempt was made to prove that all the owners abutting on that portion of the improvement when this change of grade was made petitioned for or agreed to the change. If the attempt had been successful, it would not have affected this objection; for all owners abutting on the improvement have equal right to demand regularity in the proceedings. But it has already been determined by the supreme court in the much quoted case of Uppington v. Oviatt, that this irregularity is not a defect fatal to a recovery, but only an irregularity which still leaves the abutting owners liable for the fair cost of the work done. As it appears from the evidence that the assessment does not exceed the fair cost of the work done, the abutting property is still iiable for the amount of the assessment, unless some other objection is fatal. There cannot, however, be a recovery of the five per cent. penalty, for nonpayment of the assessment when demanded. Another objection is made, which goes, not to the whole assessment, but to that portion which the city is demanding for its own use. When the city was enjoined from making so much of the work as was laid out over the Warsaw turnpike and the rest of the work was completed, action was brought to recover for the contractor an assessment for so much of the work as was done. This action being defeated in accordance with the decision *in Cincinnati v. Cincinnati and Spring Grove Avenue 731 Company, 26 O. S., 246, the contractor brought suit against the city and received judgment against the city for the contract price of the work done; which judgment has been paid. The contractor having been paid for so much of the work, the city demands for itself the assessment for it. The owners abutting on that part of the improvement claim that the contractors have been paid; the work has been paid for; the claim for which an assessment was to be levied, has been satisfied; and therefore there is no ground for levying an assessment. When an improvement is made which is to be paid for by assessment, two relations of debtor and creditor arise; an indebtedness from the city to the contractor, and an indebtedness from the abutting owners to the city. The city may pay its debt to the contractor by assigning to the contractor its claim against the abutting owners; or it may pay the contractor directly and then collect for its own reimbursement the assessment upon the abutting property. If direct payment to the contractor is Kemper et al. v. The Widows' Home et al. Vol. 1X. compulsory instead of being spontaneous, that cannot affect the right of the city to mature and collect its claim upon abutting property. Sundry lots, upon examination of evidence, were found to be worth less than four times the amount of the assessment, and as to these lots the assessment was according reduced. With this exception the assessment was ordered to be paid without penalty, and half costs to be paid by plaintiff and half by defendants. Kumler, Crosly & Ampt, City Solicitors, Paxton & Warrington, of Counsel for the City. Jordan, Jordan & Williams, Forest & Mayer, Gray & Tishbein, Crawford & Bettinger and John J. Gasser, for Defendants. NUISANCE-WATER COURSE. [Superior Court of Cincinnati, Special Term, 1881.] HUGH F. Kemper et al. V. THE WIDOWS' HOME ET AL. 1. When persons owning lands, through which runs a stream, permit and partici pate in the use thereof as a sewer, they cannot enjoin a similar use by others if reasonable under the circumstances and no actual nuisance is thereby created. They must be held to have waived their natural right to purity in the stream. 732 2. Merely increasing the flow of water in a natural water course does not, like increasing the flow of surface water, give a right of actio". Riparian owners cannot complain when such increase is due to the building or change of grade of streets and the improvement of lots fairly within the territory drained by such water course, when its capacity is not exceeded. 3. A water course in a city is, within its capacity, likewise bound to receive such increased drainage as is due to the increase of population along it, including such of the drainage due to human habitation as is usually led into street gutters. 4. No right of riparian owners is invaded when the flow is increased, if not beyond the stream's capacity, by changing the grades of lots to make them conform to the grades of streets upon which they abut, although surface water is thereby thrown into the stream which naturally would not flow there. HARMON, J. The plaintiffs say that they own and reside upon real estate in Cincinnati, on Walnut Hills, south of McMillan street, between Park and Grandview avenues; that through their lands, and in the vicinity of their residences, extending from a point north of McMillan street, there is a deep ravine, which now is and always has been a natural water course; that the plaintiffs, or some of them, have enclosed the water course so that the water which formerly ran in an open ravine now runs through an enclosed sewer, which sewer, they say, is a private one, constructed by them for their own convenience. They allege that the water which ran through this water course was pure and limpid, and that the defendants-the Widows' Home, and the Old Men's Home, which are corporations, have constructed, about 800 feet east of the place where the ravine crosses McMillan street, a large building, intended to accommodate several hundred persons; that by the permission of the board of public works of Cincinnati, the authorities of these homes are engaged in laying a drain-pipe from their building to McMillan street, and then west on Vol. IX. 733 Superior Court of Cincinnati. * McMillan street to the water course, and, unless enjoined, are about to turn into that pipe the waste water of the house, wash water, kitchen water, and the overflow of the privy vaults; that if they are permitted so to do it will create a nuisance in the water course by polluting the water and increasing the flow, and work irreparable injury. They ask that the authorities of the homes, the city, and the contractors, be enjoined from so doing. A temporary injunct on was allowed, and the case now comes up upon a motion to dissolve it, and the pleadings having been completed, and witnesses heard, in place of affidavits, the case is also submitted for final judgment. The answer admits that this ravine is a natural water course, but denies that the sewer which the plaintiffs have constructed is a private one. It alleges that the sewer stands in the place of the water course; that it is now and always has been a natural outlet for the drainage of the country in that neighborhood. Defendants deny that any water from privy vaults, or other water [which] will create a nuisance, is about to be thrown into the stream, and generally take issue with the petition. The case, as presented, naturally divides itself into two parts: I. The rights of the plaintiffs arising from the character of the water which is about to be thrown into the stream; and II. The rights of the plaintiffs arising from the throwing of any additional water, at all, into the stream. It is well settled that the water flowing in a natural stream is the property of those through whose land it flows. The stream itself is recognized as property, and its injury, by diversion or pollution, is actionable, though the American courts do not seem to go so far as those of England in protecting the abstract right to the stream. The question with us seems to be rather as to the reasonableness of the use under all the circumstances of the case, and if reasonable in view of these, the mere fact of the partial pollution of the stream is not actionable. Cooley on Torts. 587; Merrifield v. City of Worcester, 110 Mass., 219. And this same view, as I understand it, is incidentally recognized by our supreme court, in the case of Tootle v. Clifton, 22 O. S., 254. Now, while it may be true, as claimed by the plaintiffs' counsel, that it is no answer to an action for polluting a stream to show that other persons are engaged in doing the same, and that, therefore, stopping the one will give no relief, because one may consent to some persons invading his rights, and yet not consent to others doing so, yet where the use of the stream complained of as polluting it, is one to which, by the common consent of all interested, the stream has come to be put, it does not 734 lie in the mouth of any so consenting to complain. As was said by Judge Taft in the case of Hoffman and others against Winslow, a case in this court unreported, but which I have in a printed pamphlet furnished by counsel, which related to the enclosure of Deer creek, and the turning of drainage from the streets of the city into it, where property owners have made a sewer of a water course, and by common consent it has become polluted in that way, no one of the owners can be allowed to claim that things should be restored in the valley to their original condition. In none of the cases cited by counsel for the plaintiffs for the princi ple just referred to, as found in Wood on Nuisances, does it appear that the plaintiffs themselves had joined in the use which they complained of and sought to enjoin; but in all those cases persons using and claiming |