67 N.J.L. 199 | N.J. | 1901
The opinion of the court was delivered by
The prosecutor is the owner of several
lots of land bordering on Broadway, one of the streets of the city of Paterson, which have been assessed for alleged benefits arising from the repaving of a portion of the street, pursuant to the act of June 13th, 1898 (Pamph. L., p. 466), and the supplements thereto. He challenges the validity of the assessment on several grounds. The first of these to which I will call attention is that the commissioners failed to assess benefits
The statute, in defining the mode and manner of the assessments, saj^s they "shall, in each case, be in proportion, as near as may be, to an amount as will be equal to the amount of benefits actually acquired by the lands and real estate bordering on any street or highway or portion thereof so improved by reason of such improvement.” In other parts of the statute the property to be thus reached is described as "the lots or parcels of land and real estate.” From this language we think it is clear that the assessments for benefits are confined to the abutting owners upon the street thus improved. This view is sustained by the authorities. Davis v. Newark, 25 Vroom 144; King v. Duryea, 16 Id. 258; 2 Ell. R. R. 787; O’Reilly v. Kingston, 114 N. Y. 439; St. Paul City Railway Co. v. Ramsey County District Court, 31 Minn. 354; Railway Co. v. Winnebago County, 89 Wis. 435; Davidson v. Gilon, 126 N. Y. 147.
Another ground urged is that the street railway was under a duty to pave inside the rails of its tracks and for two feet outside, according to the provisions of the ordinance conferring its franchise, and that the property owners should only have been assessed for benefits accruing fyom the remaining portion of the street.
The ordinance in question expresses the duty of the company with regard to the surface of streets to be occupied by it in these words: It “shall keep and maintain so much of the streets or avenues as are inside of and for at least two feet adjoining the outside of said rails in good and sufficient repair,” &c.
There was evidence tending to show that, after the railway
We think this ground of the prosecutor cannot be maintained. To do so we must give a meaning to the word “repair” which does not ordinarily attach to it, and we would have to depart from the line of legal precedent.
In the leading case of Chicago v. Sheldon, 9 Wall. 50, it was held that a stipulation on the part of the street railway company to keep the street in constant good order and repair did not require it to pay a proportion of the expense of paving. And generally it is held that an obligation to repair a street is not an obligation to construct thereon a new pavement. District of Columbia v. Clephane, 4 Am. & Eng. R. R. Cas. 341; Farrar v. St. Louis, 80 Mo. 379; Philadelphia v. Hestonville M. & F. Railroad Co., 177 Pa. St. 371; Philadelphia v. Philadelphia City Passenger Railroad Co., 35 Atl. Rep. 720; Binghamton v. Railway Co., 61 Hun 479; 23 Am. & Eng. Encycl. L. 989 and note 1.
Another objection urged against the assessment is that the commissioners have, in the schedule attached to their report, divided the amounts of total benefits assessed against the owners into two parts — one for the pavement and the other for the curb. It is argued from this that the .assessments were made with reference to the cost of the work, and not to' the benefit derived from the improvement. But the report distinctly states that the assessments so made-are for special benefits acquired by the improvement, and that in no case are they beyond the amount of special benefits derived from the permanent improvement of the street. The evidence taken supports the report in this particular, and shows that part of the expense of the curbing was assessed upon the city at large. We are unable to say that the action of the commissioners in this respect is in violation of any legal principle, and hence we cannot interfere.
The other reasons were not pressed at the argument, and not finding in them any valid ground for interference with tire assessment, the same is affirmed, and the certiorari will be dismissed.