¶1It is admitted that the cost of the condemnation of the land must be eliminated from the assessment.
¶2It appears that1 the making of the street and the laying of the sidewalk are distinctly separate improvements.
¶3Section 2271 Rev. Stat. (repealed'96 O. L. 99; see Sec. 1536-213 Rev. Stat.) applies to each improvement separately but cannot be made to apply to them added together.
¶4The real controversy herein is over Sec. 2283 Rev. Stat. (repealed 96 O. L. 99). Plaintiff claims that under this provision the aggregate of these street and sidewalk improvements, being made within five years, cannot exceed twenty-five per cent, of the value of the property. The city contends that Sec. 2283 Rev. Stat. cannot apply because said section provides for making tw6 different streets."
¶5We are of opinion that the city’s contention in this behalf must prevail. We appreciate fully the strength of the argument of plaintiff’s counsel that if property is relieved from excessive assessment for the making of improvements upon different streets, it should be all the more relieved from such assessments piled up on the same street. But this is purely a matter of statute, and the statute is plain and explicit and not open to construction or interpretation on this point.
¶6This point has been directly passed upon by the sixth circuit, opinion per King, J. — Hunt v. Hunter, 7 Circ. Dec. 495 (14 R. 503) — and we approve and follow their conclusion. We cannot find that this point was called to the attention of the court and expressly decided in the case of Bartley v. Cincinnati, 52 Ohio St. 650 [44 N. E. Rep. 1130].
¶7Inasmuch as the’ city contracted to furnish the sidewalk contractor with a valid assessment, we are of opinion that the city cannot urge its assessment to the postponement or defeat of such contractor’s assessment or any part thereof. As between the city and Thomas Evans, to the extent that Evans’ assessment is good, it must’ have a lien upon the property prior to that of the city.'
¶8This is purely' an equitable action and Thomas Evans cannot inject an issue at law between himself and the city into it as to which plaintiff has no interest. Thomas Evans should prosecute that in a separate - suit at law, •md the decree herein will be without prejudice to such action by him.