Appeal of Hunter

Decision Date11 November 1898
Citation71 Conn. 189,41 A. 557
CourtConnecticut Supreme Court
PartiesAppeal of HUNTER et al.

Appeal from court of common pleas, Hartford county; William S. Case, Judge.

Appeal of John Hunter and others from assessments for "betterments and benefits" made against them by the board of sewer commissioners of school district No. 2 in the town of Enfield, "as to their use of certain sewers on Main" and other streets in that district. The appeal was taken to the court of common pleas, under authority of 10 Sp. Laws, p. 1109, and 12 Sp. Laws, p. 314, and finally disposed of by a judgment setting the assessments aside, from which the board took this appeal. Error.

In the original appeal to Judge Calhoun, the petitioners alleged that they were aggrieved because (1) one of the sewer commissioners was not a freeholder of the district; (2) and the assessments were illegal "because said sewers and the connections therewith were made at various periods, from seven to twenty years ago, when said sewers were owned by the town of Enfield, and the legislature has not the power to authorize an assessment now, in favor of said school district or sewer district, of special benefits alleged to have accrued by reason of said sewers, or the continued use thereof"; (3) and because "it does not appear in said assessment or elsewhere for what purpose said assessment is made, or how much money is required, or what is to be done, or what expense is to be met, or damages paid, with the money raised by said assessments"; and (4) because, "previous to the construction of said sewers, most of the petitioners had other, sufficient, and satisfactory methods and systems of draining their respective properties, which were better and more convenient than the privileges afforded by said sewers, but were induced by promises of immunity from assessments, and compelled by the officials of said town of Enfield, to give up said private systems of drainage, and to connect their properties with the public sewers"; and (5) that "no special benefits had accrued to any of them by reason of the use of the sewers"; and (6) that "said assessment is unequal, and therefore inequitable"; and (7) that they, "so far as they have connected their properties with said sewers at all, did so many years ago, with the full knowledge and consent of said town of Enfield, acting therein by their selectmen, health officer, and other officials; and said petitioners have, previous to the passage of said act of January session 1895, heretofore paid to the town of Enfield all sums required of them by said town for such connections, and have so paid to said town a legal and sufficient consideration in money, rights, and other valuable things, for the privilege of draining into said sewers." Certain objections were also pleaded applicable to certain of the appellants only. The prayer was "for a reassessment of benefits in accordance with the facts stated above."

The averments that no special benefits had accrued, and that the appellants had paid the town for the right to use the sewers, were denied, and a demurrer was filed as to the rest of the reasons of appeal. The first, second, and fifth, and so much of the fourth as respected the surrender of private drainage facilities, were held (Calhoun, J.) insufficient, and the residue sufficient The answer was then amended by adding a denial of those reasons of appeal which had been held to be sufficient, together with certain new matter, and the cause sent to a committee, whose report stated the following facts: The sewers in question were built by the town of Enfield between 1874 and 1884, to carry off the surface water from certain streets within the limits of school district No. 2, and were paid for by general taxation. Since 1889 the board of sewer commissioners have built a number of sewers in the district. Some of the appellants, who were assessed for benefits for the Main street sewer, had up to 1893 drained their premises into a brook. This became a nuisance, and in that year the health officer of the town prohibited It; whereupon, at his suggestion, they made connection with the Main street sewer, at their own expense. The board of sewer commissioners, in 1896, duly notified all parties in interest of a hearing before them "relative to the amount of damages, or betterments and benefits, or both, to be appraised or assessed to you, respectively, as to your use of" the sewers in question. In making the assessments complained of, no actual appraisal of the amount required for the maintenance, repair, or reconstruction of the sewers was made by the commissioners, nor is there anything in their records to show the purpose to which the amounts realized upon the assessment were to be applied; neither was any assessment of the actual benefits to each piece of property on account of the connections with these sewers made. In the case of the sewer on Main street, it appeared that certain parties owning property on the north side of Main street had previously connected their property with that sewer, and had in each case paid benefits, and in no case less than $25. The commissioners assumed that the benefit to each property on the south side of Main street was at least that amount, and, being limited by the resolution to that amount, made the assessment in the manner above set forth. Prior to the act of 1895, the drains in the streets in question were in no sense public sewers. The privilege of connecting with them, when put, as public sewers, under the supervision and control of the board of sewer commissioners, was a substantial benefit to each of the properties connected therewith, and the amount of benefits assessed in each case by the commissioners was not excessive, and was just and reasonable. It was claimed before the committee by the appellants that these benefits accrued to the property when the sewers were originally built, and that the persons then owning the land were those in fact benefited thereby. This claim was overruled by the committee. The board of sewer commissioners offered testimony before the committee that, on the hearing before them, they had publicly stated to the appellants and all other parties in interest that the money to be raised by the proposed assessment was to be expended for the maintenance of the general highway drains, placed by the act of 1895 under the control and management of said board, on account of which they levied. The appellants objected to this testimony, and the committee excluded it. The conclusions of the committee were thus stated: "If the court, from the facts found and the records of the action of the board of sewer commissioners, is of the opinion that their action in making this assessment was legal and authorized by the resolution of May 18, 1895, then I find that judgment should be rendered in favor of the appellees, and the appeal dismissed. But if the court should find from the facts found and the records of the doings of the sewer commissioners, as set forth herein, that the action was not legal and authorized by the resolution, then judgment should be rendered for the appellants, and the assessment appealed from set aside." The records of the board showed that they had made expenditures from year to year in the maintenance and repair of sewers. The report was accepted, against the remonstrance of each party (Case, J.), and a judgment rendered setting the assessments aside.

Charles H. Briscoe, for appellant. Charles K. Perkins and John Hamlin, for appellees.

BALDWIN, J. (after stating the facts). A thickly populated portion of the town of Enfield is embraced within the limits of school district No. 2. In view of this, the general assembly, in 1889 (10 Sp. Laws, p. 1109), gave the district power to construct, maintain, and repair sewers in those limits, and to assess the cost of construction upon the persons or land that might be benefited. An appeal to the Judge of the court of common pleas for Hartford county was given to any person aggrieved by any such assessment, "by a suit able petition in writing, setting forth the whole of said * * * assessment appealed from, and asking for a * * * reassessment" Provision was made for making all persons interested in the assessment as a whole parties to the proceeding. The appeal was to be referred to a committee, if desired by any party. If, upon the hearing of an appeal from an assessment of benefits, the judge or committee should "find cause to alter said * * * assessment," "said judge or committee" was to "proceed to reapportion the whole amount of the * * * benefits * * * upon the persons or land specially benefited." The judge was to "have, for the purpose of disposing of said...

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  • State v. Sul
    • United States
    • Connecticut Supreme Court
    • December 24, 1958
    ...4 Wharton, op. cit., p. 731. He does not thereby waive the right to have the ruling upon demurrer reviewed on appeal. Hunter's Appeal, 71 Conn. 189, 199, 41 A. 557; West v. H. J. Lewis Oyster Co., 99 Conn. 55, 67, 121 A. 462; 4 Wharton, op. cit., p. 731. He may raise constitutional question......
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    ...the law in Connecticut that when a demurrer is Overruled, the correctness of the ruling may always be raised on appeal. Hunter's Appeal, 71 Conn. 189, 41 A. 557 (1898). When a demurrer is Sustained, however, it is the rule that unless the party whose pleading has been ruled insufficient cho......
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