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Opinion, per MATTHIAS, J.
pose of the enactment of this provision was not to authorize the assessment of a portion of the expense of such improvement upon the strip of property of a railway corporation whereon it operated a steam or electric railway, for that would be assessable under the general provisions of the law relating to such improvements and the assessment of the cost thereof; its purpose was rather to direct that the land lying immediately back of such strip should be treated as abutting upon such highway, and to authorize the assessment upon such land as well as upon the strip owned by the railway corporation, which in fact does abut upon the highway.
Power to levy special assessments cannot be exercised unless the same be expressly conferred. If this interurban railway were located in the center of the highway, and the highway were improved on both sides of the interurban track, it would scarcely be contended that the central portion of the highway occupied by the track of the interurban company could be assessed upon the theory that it either abutted upon or was by the side of the highway. A street railway company may be required to pave the street between its rails, for that is expressly authorized by statute, but such company cannot be assessed as an abutting owner for the construction of a sewer along the highway over which its line was constructed and operated. The special assessment in such proceeding as that under review is levied not against the owner, but upon the abutting property. It cannot be contended that the collection of this assessment could be satisfied by
Opinion Per Curiam.
proceeding against the property—a portion of a public highway.
In our opinion there was no authority whatever for levying such assessment, and the demurrer to the amended petition should have been overruled.
Judgment reversed, and judgment for plaintiff
NICHOLS, C. J., JONES, JOHNSON, WANAMAKER and ROBINSON, JJ., concur.
MERRELL, J., not participating.
HOLMES V. SNYDER.
Party walls-Parol agreement to construct-Action for one-half of cost-Statute of frauds inapplicable, when.
(No. 16223-Decided January 13, 1920.)
ERROR to the Court of Appeals of Crawford county.
Mr. W. J. Geer, for plaintiff in error.
Mr. Chas. Gallinger and Mr. J. W. McCarron, for defendant in error.
BY THE COURT. Plaintiff in error, Jacob Holmes, seeks the reversal of a judgment rendered against him in the court of common pleas, and affirmed by the court of appeals, for the sum of
Opinion Per Curiam.
$688.50, in favor of the defendant in error, George Snyder, for the erection by the latter of a party wall upon an oral contract that when completed the plaintiff in error would pay one-half the cost thereof.
The defendant in error constructed a brick building on his premises adjoining those of the plaintiff in error, which were also occupied by a brick building, but extended his building to a somewhat greater depth than that of the plaintiff in error, and the wall in question here is that which extended northward from the northeast corner of the plaintiff in error's building. There is evidence in the record that such verbal contract was entered into between the parties, as claimed by the plaintiff, and that such wall was erected in pursuance thereof. There is also evidence in the record that this wall as erected is half on the premises of the plaintiff and half on the premises of the defendant. Evidence was adduced to the contrary and tended to` show that no part of the wall is on the premises of the plaintiff in error.
The view of the court of appeals on this question in conflict was that it had been resolved by the trial court in favor of the plaintiff below, and the court held that the evidence upon that question was sufficient to support the judgment. The record also discloses that the plaintiff in error, in anticipation of erecting an extension to his own building, and in pursuance of his desire to make use of the wall in question for the support thereof, directed those engaged in the erection of said wall to leave joist holes, which was done.
Opinion Per Curiam.
Under such state of facts the claim of the plaintiff below cannot be defeated upon the ground that the agreement under which such wall was erected is within the statute of frauds and therefore invalid. If the plaintiff and defendant had entered into a contract jointly with a third person to erect a wall upon the line, for whatsoever purpose it might have been desired or contemplated to be used, there could be no question as to the right of such third party to recover the consideration agreed upon for the construction of such wall. There is no less valid obligation upon the part of the plaintiff in error to pay the defendant in error the half of the cost of the construction of such wall, assuming that it has been established by the evidence that such contract was made, which must be conceded, for that question of fact has been determined in favor of the defendant in error and adversely to the plaintiff in error.
The judgment of the court of appeals is affirmed.
JONES, MATTHIAS, JOHNSON and ROBINSON, JJ.,
MERRELL, J., not participating.
Statement of the Case.
WEGENER V. Wegener.
Policemen's Benevolent Associations - Section 3630, Revised Statutes-Classes of beneficiaries authorized-Statute, articles of incorporation and by-laws or constitution—Right to enlarge or restrict classes-Payment of benefits — Brother of decedent not member of family, when.
1. The law in force (Section 3630, Revised Statutes), under which the Policemen's Benevolent Association was incorporated, authorized such association to pay benefit funds levied by assessment upon its members to the "families or heirs" of the association's members. Although such association could not, by its articles of incorporation, extend the classes named in the statute, it could thereby limit the class to whom its benevolence should be paid and provide, in its charter, that the fund should be paid only to the "families" of the members.
2. A by-law or constitution, adopted by such association, which enlarges the class of beneficiaries fixed in its charter, is unauthorized and void.
3. In his application for membership a member designated, as his beneficiary, a brother, who did not live with the member at the time of designation or since. Held: That the brother was not one of the family of the deceased member within contemplation of the statute and articles of incorporation in force at the time of the designation, and such designation was invalid.
(No. 16322-Decided January 13, 1920.)
ERROR to the Court of Appeals of Hamilton county.
The Policemen's Benevolent Association was incorporated under the laws of Ohio on September 10, 1888. On November 19, 1906, Albert W. Wegener applied for membership in the association, and in his application for membership designated his brother, Edward Wegener, as his beneficiary after the member's death. Edward Wege