Sowles v. Village of St. Albans

| Vt. | Jul 21, 1899

Thompson, J.

It is not necessary to decide whether the petitioner is estopped from denying that she is the owner of the land in question, by the allegation in her petition that she is the owner thereof. If the judgment of the county court can be fairly sustained by any inference of fact it might have drawn from the commissioners’ report, it is to be presumed in this court, that the county court based its judgment on such inference. Russell v. Davis, 69 Vt. 275" court="Vt." date_filed="1896-10-15" href="https://app.midpage.ai/document/russell-v-davis-6584744?utm_source=webapp" opinion_id="6584744">69 Vt. 275, and cases there cited. From the facts reported by the commissioners and the allegation of ownership in the petition,' the county court must have inferred and found that the petitioner was the owner of the land benefited by the sewer assessment in question. In view of the other facts found, there was nothing in the exhibits introduced in evidence by the petitioner to preclude such an inference.

(2) The commissioners find that Luther B. Hunt, Jr., an abutting proprietor, had paid his assessment before the hearing in this case. This removed the disqualification, if any existed, of commissioner Luther B. Hunt, by reason of his relationship to him.

(3) No. 126, Statutes 1892, is not void by reason of uncertainty in respect to the territory thereby included in the village of St. Albans. This being so, its trustees had jurisdiction in respect to the sewer in question.

(4) The report of the commissioners shows that all the proceedings in respect to the sewer and the assessments therefor against abutting property owners were regular and such as were required by law, in all particulars. Therefore the petitioner cannot prevail on her contention in regard to this phase of the case.

(5) It is found that the petitioner’s land is benefited to the extent of $69.87 by the laying and construction of the sewer, and that the just share which it should contribute toward the expense thereof is that sum. This is only another way of saying that that is the petitioner’s just share of such expense based on the special benefit which she receives. This is the same amount assessed by the trustees in the original proceedings. Section 8 of No. 192 of St. 1876, provides that persons benefited by the laying and construction of a sewer may be assessed therefor to the extent of their just share towards the expense of laying and constructing the same. It is not apparent from the report, nor from anything urged by the petitioner, that the method of apportionment adopted was not just and equitable as to her and the other property owners of this sewer district. On the contrary it appears that $69.87' is her just share of the expense.

It is urged by the petitioner that the failure to assess fifty-eight to sixty feet of frontage next south of the premises in question, on Russell street, was error, for that such assessment would have lessened the amount of her assessment by about $1.40. It nowhere appears in the record that this land was benefited by the sewer. Such a finding is necessary to make it subject to assessment. On the contrary, the finding in respect to the just share of the cost of the sewer, which the petitioner should pay, is impliedly a finding that this frontage of fifty-eight to sixty feet was not benefited. The record not showing error affirmatively, it will not be presumed.

(6) The petitioner was in no way harmed by the admission of No. 191 of St. 1894, as no fact was found from it, nor could the decision of the court below have been affected thereby. Hence, it is not necessary to decide whether it was error to admit it, as in any view of the case it was not reversible error. Nor have we been able to discover any error in respect to the admission of other evidence.

The petition ought not to have been dismissed as it was that which gave the county court jurisdiction in the premises.

Judgment dismissing the petition is reversed, and judgment Jor the petitionee to recover sixty-nine dollars and eigthty-seven cents damages and its costs.