Bowditch v. City of New Haven

Carpenter, J.

The evidence offered by the petitioner was properly rejected. The allegation in the petition, under whiph it was offered, “ that said assessment was not laid according to law,” is too indefinite. The provision in the charter authorizing the party aggrieved to make written application for relief to the Superior Court, implies that the grounds for relief should be stated. This is a judicial proceeding, and there is the same reason for requiring a party who resorts to it to state specifically the reasons for appealing, that there is in requiring the plaintiff in an action at law to state his cause of action, or the petitioner in a bill in equity to state the facts on which he bases his claim to a decree. Moreover the petitioner avers in his petition that the court of common council made the assessment. The evidence offered tended to disprove this averment.

We advise the Superior Court to overrule the remonstrance, and accept the report of the committee.

Iii respect to the judgment to be rendered—

It is objected that no assessment can be made, for the reason that the improvement is simply a repair. The committee has found that “ the whole improvement was substantially a new pavement, and not merely a repair of the old,” which is conclusive against the petitioner upon this point.

It is conceded that paving a street is a public improvement for which assessments may he made upon the adjoining proprietors who are specially benefited thereby. It is found that the petitioner is specially benefited to an amount exceeding the sum assessed. That being so, the fact that the street was not paved from curb to curb docs not render the assessment illegal. Whether the whole, or a part of the street, should he paved, must be left to the judgment and discretion of the city authorities.

The objection that the lots assessed vary in depth, and that the assessments were at the uniform rate of one dollar per front foot, ought not to prevail. The lots of the least depth, eiglity-five feet, cau he, and doubtless are, used for building purposes. Practically they receive the same benefit that deeper lots do. Those portions of the deeper lots lying back of a suitable depth for buildings, can hardly be said to be specially benefited. Such lands will ultimately be brought into market by means of other streets, and will be liable to be assessed for the construction and improvement of such streets. To tax them for both would be unjust.

The fact that no assessment was made against the railroad company does not invalidate the assessment made against the land owners. They are assessed as a class, and in view of the special benefits accruing to land. The railroad company do not belong' to that class, but stand upon a different footing. They are required by their charter to maintain that part of the highway occupied by their track, and a space two feet wide on each side. The charter and ordinances contemplate their paying their just proportion of the whole cost. The assessment against them rests not so much upon the ground that their property has been enhanced in value, as upon the ground that the city has done certain work that they are legally bound to pay for. Hence the provision in the ordinance that the amount required of any horse railroad company shall first be deducted from the whole expense, and two-tliirds of the balance assessed upon property owners specially benefited. The assessment against the petitioner is in fact less than it would have been if that course had been literally pursued, as the whole amount assessed is less than two-thirds of such balance.

Equitable reasons may exist why the city required no portion of this expense of the railroad company; or it may be that they will hereafter require such payment, as perhaps they would have a right to do. However that may be, we do not see that the land owners have suffered any injustice, and hence discover no reason on that ground for setting aside the assessment..

But it seems that the common council in making the assessment made a mistake upon their own principles. The expense of paving a portion of the street, five hundred and forty-six feet in length, which was not upon or in front of any portion of the land assessed, was inadvertently included in the whole sum from which the assessment was made. That mistake should be corrected; which, being done, will reduce the assessment to ninety-three cents per front foot.

The Supei’ior Court is therefore advised to assess the petitioner at that rate, and render judgment accordingly.

In this opinion the other judges concurred.