Connecticut Railway & Lighting Co. v. City of Waterbury

• Decision Date: 07 March 1941
• Citation: 127 Conn. 617,18 A.2d 700
• Parties: CONNECTICUT RAILWAY & LIGHTING CO. v. CITY OF WATERBURY.
• Court: Connecticut Supreme Court

18 A.2d 700

127 Conn. 617

CONNECTICUT RAILWAY & LIGHTING CO. v. CITY OF WATERBURY.

Supreme Court of Errors of Connecticut.

March 7, 1941

Appeal from Superior Court, New Haven County; Foster, Judge.

Proceeding by Connecticut Railway & Lighting Company against the City of Waterbury in the nature of an appeal from an assessment of benefits by the Board of Commissioners of Public Works of the city, taken to the Superior Court, and tried to the court. From a judgment dismissing the appeal, the plaintiff appeals.

Error and new trial ordered.

Daniel F. Wheeler and David S. Day, both of Bridgeport, for appellant.

J Gregory Lynch and T. S. Sullivan, both of Waterbury, for appellee.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

BROWN Judge.

By its appeal to the Superior Court the plaintiff, as owner of a tract of land abutting the westerly side of North Main Street in Waterbury, sought relief from an assessment of benefits for the construction of a sanitary sewer in the street opposite its property. This consists of a strip of vacant land fronting 298.5 feet on the street, with a maximum depth of 48 feet at its northerly end and a depth of less than 10 feet at its southerly end. An undefined right of passage over it to the street interfering to some extent with the use of the plaintiff's land is appurtenant to the undeveloped adjoining land on the west. The sewer was properly built by the city at a construction cost of $22.31 per foot and serves a large number of houses on both sides of the plaintiff's land. Section 53 of the defendant's charter (21 Special Acts, 1931, p. 580) provides that there shall be assessed ‘ the sum of two dollars and fifty cents per lineal foot of frontage upon all property abutting upon such sewer. * * *’ In compliance with the provisions thereof, the defendant's board of commissioners of public works made an assessment against the plaintiff's land for the sewer at the flat rate of $2.50 per foot prescribed therein, a total of $746.25. These facts are undisputed. The court found that the plaintiff's land was actually benefited approximately $250.

The question to be decided is whether the court erred in its determination that the assessment of $746.25 is valid notwithstanding the total actual benefit to the plaintiff's land from the construction of the sewer is but $250. A municipality desiring to make a public improvement, such as the one in this case, can no doubt pay for it from its general funds resulting from taxes levied in the usual way or it can impose some or all of the expense upon property owners who will be specially benefited by the improvement, but if the latter method is followed, the essential basis is the fact that actual benefits have accrued to the property by reason of the improvement. 1 Page & Jones, Taxation by Assessment (1909) p. 16. The principle upon which a valid assessment under § 53 must rest and the consequent limitations upon the amount properly to be awarded, have been well summed up by this court in these words: ‘ The fundamental principle upon which such assessments are made and justified is that-The owner of the property is ‘ assumed to be benefited by the improvement to the extent of the assessment; and it is imposed and collected as an equivalent for that benefit, and to pay for the improvement.’ [City of] Bridgeport v. New York & N.H. R. Co., 36 Conn. 255, 263 (4 Am.Rep. 63). The value of his property has been increased to the extent of the benefit assessed upon it. 2 Cooley on Taxation (3d Ed.) 1153, 1234, 1258, 1260; 2 Elliott, Roads & Streets (3d Ed.) § 662; 1 Page & Jones, Taxation by Assessment, § 11. The benefits assessed may not be ‘ greater than the * * * benefits conferred.’ Ferguson v. Stamford, 60 Conn. 432, 446, 22 A. 782, 787. The benefits conferred are at least full compensation for the expense imposed on the person assessed, and he suffers no pecuniary loss. 2 Cooley on Taxation (3d Ed.) 1154. It is true that the owner of benefited property must part with money to pay his assessment for the benefits he receives, but the money is only the measure of his benefits. His property has changed in form, not in amount; he may change its form again without loss.' Whitmore v. Hartford, 96 Conn. 511, 519, 114 A. 686, 689. The benefits assessed ‘ must be special, as distinguished from the general benefits from the improvement to the public at large; that is, they must be such pecuniary benefits as result to the particular landowner by reason of his ownership of the land affected * * *.’ Appeal of Cohen, 117 Conn. 75, 83, 166 A. 747, 749, ‘ Whether stated in the charter or not, in no case can the assessment against any property owner exceed the special benefits he will actually receive from the improvement. Davis Holding Corp. v. Wilcox, 112 Conn. 543, 549, 153 A. 169.’ Bishop v. Meriden, 114 Conn. 483, 487, 159 A. 289, 291. The principles recognized in these decisions are generally accepted. See 5 McQuillin, Municipal Corporations, 2d Ed., § 2166; 1 Page & Jones, Taxation by Assessment (1909) p. 197, § 118.

In Village of Norwood v. Baker, 172 U.S. 269, 279, 19 S.Ct. 187, 191, 43 L.Ed. 443, the court said: ‘ In our judgment, the exaction from the owner of private property of the cost of a...