In re the Consolidated Appeals of Wheeler , 80 N.Y.S. 204 ( 1902 )

Grant, J.

The sewer commissioners apportioned the cost of constructing the sewer on Liberty and Pleasant streets according to the “ foot front rule,” upon the theory that, in their opinion, the foot front rule was the most equitable and just, and in so doing, they no doubt believed such basis to be fair and equitable; the appellants claim that as the property upon the streets sewered varied greatly in area and value and also as to the benefits derived, the application of the foot front rule is not a compliance with the statute under which the apportionment is made and is not an apportionment according to the benefits derived therefrom.

The statute under which the apportionment is made provides: “ Such expense shall thereupon be apportioned upon the lands within such area in proportion as nearly as may be to the benefit which each lot or parcel will derive therefrom, and the ratio of such benefit shall be established.”

The Legislature having the power to direct the method to be pursued in apportioning the expense of constructing a sewer and having adopted the benefit rule in the general Village Law respecting the apportionment of the cost of constructing sewers, such method cannot be departed from.

It does not follow that the foot front rule is necessarily erroneous ; it may he the most just and equitable of any rule that can be adopted and it may also be according to the benefits derived therefrom. O’Reilley v. City of Kingston, 114 N. Y. 439. On the other hand it may not be according to the benefits to the property, depending entirely upon the conditions existing in each particular case.

Where the lots on any street sewered are of uniform size and value and all similarly improved or unimproved, as the case may be, the application of the “ foot front rule ” would undoubtedly be a compliance with the statute.

Where, however, the property affected varies greatly in area and value, the application of the foot front rule is not a compliance with the provisions of the statute requiring the cost to be “ in proportion as nearly as may be to the benefit which each lot or parcel will derive therefrom.”

It cannot be seriously contended that the Wheeler lot with a total frontage on Liberty and Pleasant streets of 207 feet, valued at $725 by the town assessors and taxed by the commissioners for benefits at $54.63, is benefited more than the school property with a frontage on Liberty street of 160 feet, valued at $40,000, with a daily attendance of about 500 children and taxed by the commissioners for benefits at $53.95. The school property has an area of two and one-half times that of the Wheeler lot, as appears from the map submitted.

What is true of the school property is also true to a certain extent of the other parcels of property on said streets with a greater area and value than the Wheeler lot.

“ In assessing the expenses of street improvements upon the property benefited the general rule is to consider the effect of the improvement upon the market value of the property and to make the assessment in view of that fact without regard to the present use or the purpose of the owner in relation to future enjoyment.” Matter of Klock, 30 App. Div. 24; People ex rel. Howlett v. Mayor, 63 N. Y. 291. “ That principle makes it necessary that the assessors should take into consideration the value of the property, and it necessarily follows that they must take- into consideration the question whether the property is vacant or improved, and, if improved, the extent and value of such improvement.” Id.

The case of Hock seems to he more nearly in point than any case to which the attention of the court has been called; the case arose in this district upon an appeal from an apportionment and is a very lucid exposition of the law in cases under this statute.

Hone of the cases to which the attention of the court has been called, apparently approving the foot front method of apportioning the expense of public improvements, are cases of appeal from an assessment by the commissioners; on the contrary, they are all cases in which the question came up in a collateral proceeding, under special statutes or in actions to remove a cloud upon the title.

All of the cases apparently approving the foot front method of apportioning the expense of public improvements are very carefully and exhaustively reviewed in Matter of Klock, and the discussion of that case by Judge Herrick leads to the irresistible conclusion that the statute under consideration requires the expense of constructing a sewer to be apportioned according to the benefit to be derived therefrom, and that such ratio cannot be established without taking into account the benefits as- well as the frontage and the value of the property to be assessed.

The value of the property alone would not be a proper basis for apportioning the cost of public improvements like a sewer; the benefit to the property must also be considered. In the case of the Hathaway lot, the fact that a sewer had previously been constructed on Avery street, and Sewer connection made on that street, should be taken into consideration by the commissioners in determining what benefit, if any, the line of sewers on Pleasant street would be to the property.

I am, therefore, of the opinion that the sewer commissioners adopted an erroneous rule in apportioning the expense of the sewer on Liberty and Pleasant streets, and the order of the sewer commissioners should be reversed and three disinterested freeholders of the village should be appointed commissioners to make a new apportionment.

Order of sewer commissioners reversed.