Hungerford v. City of Hartford

| Conn. | Sep 15, 1872

PaRK, J.

The errors assigned in this case do not point out distinctly, in accordance with our rules, any errors of law claimed- to have been committed by the judge in the trial of this cause.

The first assignment of error is merely formal. It sets forth that upon the facts found the prayer of the appellants should have been granted and judgment should have been rendered in their favor. This is entirely too indefinite, and we pass it without consideration.

The second assignment of error asserts “ that the whole assessment of benefits was .made upon the owners of land abutting upon the sewer, and not upon the persons whose lands were especially benefited.”

It does not appear in the case that other lands than those along' the' line of the sewer were specially benefited. The lands extending from Rocky Hill on the west to Washington street on the east, which are claimed by the appellants to be specially benefited by this improvement, are not found by the judge to be so benefited, and so far as we can see are not so in fact. These lands are drained now in the same manner as they were before the sewer was constructed. All that can be said is, that formerly the surface water from them found its way to Park river through a large brook, but now the brook is turned into the sewer, and so far as the sewer extends up Broad street it forms the conduit for these waters to the river. But the lands are drained before the water reaches the sewer, and what matters it, so far as benefit to these lands is concerned, whether the accumulated water flows all the way through a natural, or a part of'the way through an artificial channel to the river ? We think the case furnishes no foundation for this claim of the appellants.

The third and last error assigned is that “ the sewer was constructed much .larger than was necessary for ordinary sewerage, for the purpose of receiving a natural water-course, and draining a large tract of land, and relieving that portion of the city from a nuisance ; and that the appellants should have been assessed for only such reasonable sum as was necessary for ordinary sewerage.”

The appellants here complain of the size of the sewer, and yet the judge has expressly found that it was no larger than the necessities of the locality required. Suppose a sewer had been constructed to meet the private wants of the appellants and others along its line for ordinary sewerage purposes only, what would have been the consequence ? The judge has found that it is in contemplation to extend the sewer. through the whole length of Broad street, a distance of one mile or more. Hence it may be inferred that the time is not far distant when a sewer will be necessary at least for a portion of the remaining way. When that time shall come, the same rule would of course apply to those along the line of the new sewer that is now asked to be applied to the appellants; and the same rule would govern as the necessities of a sewer should develop themselves through the whole extent of Broad street; and the consequence might be that fifty different sewers running to Park river would be required, to meet the wants of the entire street.

It may be said, and probably has been said, that an improvement of this character should have been laid out through the whole extent of the street at one time, so that all the persons along the line specially benefited should be compelled to contribute to its construction in just proportion; and that it is unjust for those living near to Park river, where the sewer is required to be much larger than elsewhere along the line, to pay the expenses of a sewer so much larger than their own necessities require.

It is difficult to prescribe any general rule on this subject. Circumstances alter cases very essentially. One set of circumstances probably would have required that the authorities should act in accordance with the rule urged by the appellants, while another set of circumstances might require that they should act as they hare done in this case. It is to be presumed that they acted in good faith in the construction of the sewer, both in .respect to its dimensions and its extent, and that they have taken into consideration all the surrounding circumstances in order to ascertain what was best to be done. If the appellants have to pay more towards the construction of this sewer than they would have done under other circumstances, it is owing to the peculiar character of the locality. The case finds that they are benefited to a greater extent than their assessment, so that the sewer adds more to the value of their land than it takes from them, and leaves the balance in their favor. The case further finds that the necessities of the appellants required a sewer of greater dimensions than what was necessary for the removal of the waste water of their premises. The brook, which ran in the vicinity of •the appellant’s land, became a nuisance by reason of offensive matter from sewers being discharged into it, and left along its banks. The removal of this nuisance became a necessity, and this was accomplished by discharging the waters of the brook into the sewer. Hence it appears that the appellants were specially benefited to a greater extent than they would have been in ordinary circumstances.

But it is said that the appellants ought not to have been assessed to a greater extent than their just proportion of the cost of a sewer, no larger than the necessities of ordinary sewerage required, and that the burden of paying the remainder should have been left to the city. But the city have the right by virtue of their charter to assess the whole expense of constructing sewers upon those specially benefited, provided the special benefit is equal to, or exceeds, the expense of constructing them. This was so decided in the case of Clapp v. The City of Hartford, 85 Conn., 66.

The appellants were specially benefited to a greater extent than their assessment. Hence it was discretionary with the city whether they would assess the whole expense of the sewer upon those specially benefited or not. They have chosen to do so, and we think their decision is final in the matter.

There is no error in the judgment complained of.

In this opinion the other judges concurred ; except Carpenter, J., who having heard the case below did not sit.