Ernst v. Kunkle

Bowen, J., delivered the opinion of the court: The exercise of the power of assessment by the city of Cincin [523] nati, upon real estate, by the front foot, to pay for improving an adjoining street, is not a violation of the constitution of 1851. If damages are sustained by the owner or occupant of land, by reason of the grading of a street, the city is liable to the party injured, and the statute provides a remedy which may be pursued in such case ; but until a claim for such, damages is filed with the clerk of the city, and sixty days thereafter shall have elapsed, without any steps being taken by the city to assess the damages, an action will not lie against the city or its agents to recover for such injury. It does not appear in this case that the claim of Ernst for damages had been filed with the city clerk. It was legally competent for McKeon & Reynolds to assign their contract with the city to Kunkle and Saffin, although the assessment to pay for the grading was made by the city to pay the former; and the assignees could, after the completion of the work, sustain a suit to recover the assessment. The counter claim of Ernst for damages, for injuries to his property on account of the grading, cannot be allowed as against Kunkle & Saffin, as it appears that if the claim is a valid one, the city is primarily liable. Judgment affirmed. * Bartley, C. J., dissented. Footnotes [*] This case was decided before the case of Hill v. Higdon, ante, page 243, was reported.