200 Mich. 582 | Mich. | 1918
In the city of Grand Rapids, West Leonard street extends from Bristol street, the city
It appears that in the year 1901 a sewer was constructed in West Leonard street from Tamarack to West, its size from Tamarack west to Powers street being 24 inches, and from Powers to West street 18 inches, and for the purpose a sewer district was made, upon which the cost of construction was assessed. The old sewer emptied at Tamarack street into a • 9-inch sewer, causing some trouble at times, backing up water and flooding cellars on the West Leonard street line. Before the events related hereinafter this defect had been remedied. It is perhaps a necessary implication from the facts testified to that a natural water course existed on Tamarack street, that it was converted into a sewer in some way, and that the flow from the West Leonard street sewer was thereafter taken care of. There is testimony, not disputed, to the effect that thereafter the West Leonard street sewer, as it was constructed, answered its purpose and the needs of property connected with it.
In June, 1909, a resolution of the common council was adopted which requested the board of public works to furnish an “approximate estimate” of the cost of lowering the sewer and laterals in West Leonard street running from Tamarack west to West street and the construction of a sewer in West Leonard street from West street to the east line of Greenwood cemetery, necessary storm water conduits, branches, manholes and laterals, etc., “the construction of said sewer
It is inferred that the owners of property served by the old sewer on West Leonard street, if not antagonistic to the proposed improvement, were insisting
“First. Because the construction of said sewer is of no benefit to our respective properties, and said assessment therefor is not based upon benefits derived.
“Second. The property owned by us was assessed for a sewer in said street in the year 1903, and which assessment was paid.
“Third. Because said assessment is not spread against our respective property for benefit received by it.
“Fourth. Because we were not notified for the proposed construction of said sewer and the same was constructed by said city without our consefit.
“Fifth. Because we were assured, after said construction was let, by the aldermen of said ward and the chairman of said committee of the assessment district, that the taxes therefor would not exceed ten dollars per lot.
“Sixth. Because said assessment amounts to a practical confiscation of our property without corresponding compensation therefor.
“Seventh. Because said roll is irregular, not in conformity with the law, inequitable and unjust.”
Meantime, the sewer had been , constructed and, as the court below found, construction went on from day to day under the observation of the appellants, according to plans adopted by the city and on file in the proper office, so that no one was deceived about the nature of the actual improvement.
Thirty-five owners of property assessed for the im
(1) The new sewer was of no benefit to the property owners assessed therefor between Tamarack and West streets.
(2) The construction of the new sewer was not authorized by the resolution declaring the lowering of the existing sewer a necessary public improvement.
(3) The assessment was not according to benefits, and credits for the old sewer were not properly given.
(4) The property owners cannot be said to be guilty of laches and are not estopped from contesting the assessment.
Counsel do not much disagree about the law. It is agreed that there is a presumption in favor of proper, as distinguished from improper, official action and that taxpayers have the right to- assume that such improvements will be made and the cost thereof levied and collected in accordance with the law. It is agreed that the assessment cannot exceed the benefit to be derived from the improvement and that the theory sustaining such levies is that the party assessed is locally and peculiarly benefited over and above the ordinary benefit which as ’one of the community he receives in all public improvements, to the precise extent of the assessment. White v. City of Saginaw, 67 Mich. 33; City of Detroit v. Judge of Recorder’s Court, 112 Mich. 588; City of Detroit v. Daly, 68 Mich. 503. But in applying these rules it is necessary to observe some other rules. Cities must have sewers. The law, in this case the charter of Grand Rapids,
A study of the record has not convinced me that any of plaintiff’s contentions ought to be sustained. The idea that their property was not at all benefited by the improvement is preposterous. The fact that a sewer has been constructed for some distance in a city street does not prevent its extension and enlargement as the necessities of property farther out on the street may require, or the public health may demand. The new improvement involved the old, and might of course destroy the old one entirely.- In fact, it did destroy it, in this case, larger tile being used and laid at a greater depth than the old tile. Farther west, where the sewer was smaller, the old tile, all or some of it, was utilized. But plaintiffs did not own .the tile and had no vested right to have the old sewer maintained. It is said that the jurisdictional step of declaring the proposed improvement a public necessity was not taken because the resolution provided for lowering the old sewer when in fact a new sewer was proposed and was constructed. The argument is based upon the notion that the term lowering the existing sewer means and must mean simply sinking it, and what is in it, to a greater depth. This is made evident by the following excerpt from the brief for plaintiffs:
“It will not do for defendant to say: ‘It does not mean a great deal to the engineering department whether a sewer was spoken of as being a lowered or constructed sewer.’ It does mean a great deal to the people affected, whose only notice is in the words of the resolution, who are not technical men, and who have not the advantage of private information and instruction as has the engineering department, that the thing apparently contemplated by a resolution is not the real thing that is to be done.”
Assuming, what is questionable, that plaintiffs have the right, in this proceeding, to contest the amount of the assessment, they must at least point out either that the method of assessment adopted was all wrong or that, applying a proper method, a wrong result is apparent. This I think they have not done. An as