benefit would accrue to them from the construction of the improvement, which could not possibly be the case if the substantial value of their property were taken to pay the assessment laid down upon it. The petition must be construed in the light of this situation, and so as to effectuate the manifest intention of the parties."

The improvement in the village of Clyde was made under a special act (90 O. L., Local, page 434), which among other things provides:

"Provided, however, that two-thirds of the cost for improvement and paving any street, and of constructing a sewer under such paved part, for which said street improvement fund shall be used, shall be assessed on the real estate bounding and abutting thereon, and according to the foot frontage of the real estate so bounding and abutting as provided by the laws of the state of Ohio."

The Supreme Court expressly holds that the reference to "the laws of the state of Ohio" brings Revised Statutes, 2270, into contemplation and makes it part of the body of law applicable to the improvement in the village of Clyde. Revised Statutes, 2270, provides a limitation of twenty-five per centum of the tax value of the property on assessments.

The Supreme Court does not deny the application of the doctrine of estoppel in the Birdseye case, but says that the estoppel shall not extend beyond the intention which the court finds in the paper which the property owners signed. The court finds that said petition was signed with the limitation of Revised Statutes, 2270, in view.

The case of Birdseye v. The Village of Clyde went to the Supreme Court from the sixth circuit. That case came on for application before the judges of that circuit in the case of Harriet A. Blair v. C. K. Cary, 2 C. C.-N. S., 25, and in the course of their opinion the court, per Parker, J., say on page 37:

"It is urged by counsel for plaintiff in error that the case of Birdseye v. Village of Clyde, 61 O. S., 27, is in point here and has some influence upon the construction of this provision of Section 2272, Revised Statutes, but we can not so understand it, and we do not think that is true. In that case the act under con

Thornton et al v. City of Cincinnati.

[Vol. IV, N. S.

sideration was a special act for the city of Clyde, and it contained no limitation whatever; it did not contain a provision, as this section does, that the assessment should be a valid lien against the property, although it might exceed twenty-five per centum of the value; it contained no provision upon the subject.

"Our construction of the law was that that being the only act invoked (the petition being under the act), and it containing no limitation, there was no limitation, and that, therefore, they might disregard the twenty-five per cent. limitation fixed in Section 2270, Revised Statutes. The Supreme Court, however, took a different view; it held that in the absence of any express provision, the limitation fixed by Section 2270, Revised Statutes, should be read into it and be considered as a part of the act, and that for the protection of persons proceeding under that special act as well as others. But here we have a case of an express provision applicable to the city of Toledo to the effect that notwithstanding an assessment may exceed twenty-five per cent. of the value, it shall be valid as against persons signing the petition; and we think, therefore, that the plaintiff has no ground of complaint upon that score.'

The improvement in the case at bar was either made under Revised Statutes, 2272, or under the general powers of a municipality to make improvements and assess the cost thereof not exceeding special benefits on the abutting property irrespective of special statutory provision.

Revised Statutes, 2272, provides:

"When a petition subscribed by three-fourths in interest of the owners of property abutting upon any street or highway of any description between designated points, is regularly presented to the council for the purpose, the cost of any improvement of such street or highway may be assessed and collected in equal annual installments, proportioned to the whole assessment in a manner to be indicated in the petition, or if not so indicated, then in the manner which may be fixed by council."

It is said that three-fourths of the abutting frort feet have not joined and hence this improvement and assessment can not have been under Revised Statutes, 2272.

But the signers of the above petition have expressly estopped themselves from making this objection having agreed with the

city and each other "to pay such assessment irrespective of the number of owners of property signing the petition." Whether this improvement was made under Revised Statutes, 2272, or the city's general powers is all the same, because the objection here is that assessment beyond the special benefits is unconstitutional.

There is no doubt of this constitutional limitation, but this may be waived by contract, or parties by conduct in pais may estop themselves from setting it up. State v. Mitchell. 31 O. S., 592; Tone v. Columbus, 39 O. S., 281.

Now let us do here what the Supreme Court did in the Birdseye case, find out what the signers intended by what they said. in the paper which they signed and then hold them bound by estoppel to that extent and no further. There is no ambiguity in what they said, they asked the city to make the improvement and said they would pay the whole cost thereof, less fifty per cent. and the cost of intersections. They said to the city we will be the arbiters of our own economy; we want this and we will pay for it, and we will take the chances and responsibility of our property being sufficiently specially benefited.

Else the petition would be a nullity and have no force and significance. The city could have done what the property owners say it could have done, without the petition as well as with it.

The petition in the Birdeye case had to be read with and have read into it the special law and all the other law which the special law drew into itself.

The petition in the case at bar was not needed to confer jurisdiction or power, its sole office was to avoid and surrender the constitutional limitation.

We find nothing in the case of McGlynn v. Toledo, 22 O. C. C., page 39, out of harmony with this conclusion. Hence we are of opinion that the signers of the petition in the case at bar are estopped from setting up the constitutional limitation of special benefits.

The assessment should be reduced by so much of the cost of intersections as was included therein.

Albert T. Brown, for plaintiff in error.

John V. Campbell and Charles J. Hunt, contra.

Benham v. City of Cincinnati.

[Vol. IV, N. S.

MARY H. BENHAM V. CITY OF CINCINNATI.

JELKE, J.; GIFFEN, J., and SWING, J., concur.

The conclusion reached in the Thornton case is applicable to this case also.

As to the power of the lower court to hear evidence as to the amount of special benefits, we said in the case of Cincinnati v. Shoemaker: "If the benefits conferred are equal to the assessment there is nothing to move a court of equity to intervene by injunction;" this was approved by the Supreme Court.

Of course a court can not make the finding and deny an injunction on that ground without hearing evidence as to the special benefits.

A corollary of the above is that a trial court may hear evidence of special benefits, find the same, and then say that up to this point we will not enjoin, beyond it we will, which is practically fixing the assessment. See Schroder v. Overman, 61 O. S., 1; Walsh et al v. Sims, Treas., 65 O. S., 211; Shoemaker v. City, 68 O. S., 603.

Where, however, the assessing board has made a finding of benefits and has made the assessment on that basis, such finding and assessment are prima facie correct, and should not lightly be disturbed or inquired into in the absence of allegations of some of the grounds usually invoking equitable intervention. Coppock & Hertenstein, for plaintiff in error.

John V. Campbell and Charles J. Hunt, contra.

Evidence-As to Notice to City of Defect in Sidewalk-Knowledge of a Policeman the Knowledge of the City, When-Rule of the Police Department as to Observing Defects, Competent.

1. A recognized rule of the police department, which requires policemen to note and make report, among other things, of "all coal holes left open," is competent as evidence in a suit against the municipality by one who has suffered injury by falling through an open coal hole in the sidewalk.

2. Where it is thus made the duty of a policeman to report a defect, and his attention has been called to a coal hole in the sidewalk with an insecure lid, which had tilted up from the weight of a pedestrian, causing him to fall into the hole, and the owner of the property or some one for him informs the policeman that he is unable to remedy the defect, the knowledge of the policeman becomes the knowledge of the city, and evidence of such knowledge is competent in a suit for damages by one who subsequently fell into the same hole.

MARVIN, J.; HALE, J., and WINCH, J., concur.

Julia Payne brought her action against the city of Cleveland to recover damages for injuries sustained by her from falling into a coal hole in the sidewalk on Pearl street near the corner of Bridge and Pearl streets in said city, by stepping onto the cover of said hole, which thereupon slipped in such wise as to leave said coal hole open. This was on June 25, 1895. The hole was in front of a brick block owned by one Henry Heil. The excavation under the sidewalk was made by said Heil under permission granted for that purpose by the city. The covering over said coal hole was an iron plate, and it is charged in the petition that said hole so covered was at the time of the injury to the plaintiff a public nuisance in that the cover thereto had become and was worn and loose in the rim surrounding it, whereby said cover had become ill-fitting and insecure, and that by reason of the shallowness of the rim around said hole into