For the establishing of the park 134 acres of land were condemned and the total amount assessed as the value thereof to be paid the owners was $870,759.60, and for the payment of that amount assessments as of benefits were made on a large number of lots included in what is known as West Park district, among which were lots owned severally by defendants Bacon and Monroe. The assessments on the lots of Mrs. Bacon aggregated $3,252.49; those on the lots of Monroe, $991.17. The amount assessed against the city as general benefits was $1.
The point against which the main force of appellants’ argument is directed is instruction 11 given at the request of the city, and which is:
“11. By your verdict you shall show a correct description of each piece or parcel of property taken and the value thereof, and of each piece or parcel of private property damaged and the amount of injury thereto. You shall also show by your verdict the amount, if any, assessed against the city, and shall show the amount of benefits assessed against each piece or parcel of private property found benefited within the benefit district.
In estimating the benefits that may accrue to the city and to the public generally, or to any property in the benefit district by reason of the proposed improvement, you shall consider only such benefits as are direct, certain and proximate.”
The law contemplates that a public improvement may bring a benefit to the property of individuals separate from that which it brings to the city in general, and that it may bring a benefit to the city in general separate from that which it brings to the property of the individuals, and that when it comes to apportioning the cost, the individuals and the city should each bear the burden in proportion to the respective benefit, but the benefit in the one case must be as “direct, certain and proximate” as in the other.
Conceding all that the learned counsel say concerning the difference between general and special taxation, we do not see how it affects the question relating to the character of the benefits the city is required to pay for in a case like this. And if it is lawful for the jury to estimate the benefit to the city at large with a view to charging a proper share of the cost of the improvement to the city and thereby to that extent relieve the burden of the property owners; that is to say, if that feature of the law which contemplates laying a portion of the burden on the city at large is not in violation of the fourteenth amendment to the Constitution of the United States, then there must be some rule to guide the jury in assessing those benefits, and if it is not proper to instruct the jury that the only benefits to the city at large which they are to consider are such “as are direct, certain and proximate,” then the contrary is true, and they should be instructed to consider benefits that are indirect, uncertain and remote. We recognize that the task of assessing benefits either to private property or to the city at large is a very difficult one, and that the temptation to the jury to indulge in conjecture is great, but still they ought to be admonished that the law requires them to use their reason and judgment, and not their imagination. The provision of the law requiring the benefits to the city at large to be estimated by the jury should either be eliminated entirely or else the jury should be instructed as to what the law means by such benefits, and if it does not mean such “as are direct, certain and proximate,” it is meaningless.