Ferguson v. Borough of Stamford

Decision Date20 April 1891
Citation60 Conn. 432,22 A. 782
CourtConnecticut Supreme Court
PartiesFERGUSON et al. v. BOROUGH OF STAMFORD.

Appeal from superior court, Fairfield county; Fenn, Judge.

Suit in equity by Edmund M. Ferguson and others against the borough of Stamford, to have declared void an assessment of benefits for a sewer. Judgment for defendant. Plaintiffs appeal. Affirmed.

E. L. Schofield, N. R. Hart, and J. E. Keeler, for appellants.

S. Fessenden and N. C. Downs, for appellee.

CARPENTER, J. In November, 1885, the borough of Stamford adopted a general system of sewerage for the use of the borough, and voted that $25,000 of the cost of construction be defrayed by assessment upon the property of such persons as might be benefited thereby, and that the remainder of the cost, including damages and expenses, be defrayed by the issue and sale of bonds. Immediately thereafter the borough entered upon the construction of said system of sewerage, and completed it in December, 1888. In February, 1887, the borough applied to a judge of the superior court for the appointment of suitable persons to ascertain and determine the apportionment of such assessment of benefits upon the property of such persons as were benefited thereby. Upon that application three persons were appointed, who made a report of their doings to the superior court in December, 1887. The portion of the assessment upon the property of the estate of John Ferguson, deceased, amounted to $674.36. That estate is now owned by the plaintiffs as tenants in common, and the assessment thereupon is the matter now in controversy. On the 4th of April, 1888, certificates of lien were filed in the office of the town clerk of Stamford to secure the payment of said assesment. The object of the suit is that the assessment may be declared void, and that the cloud upon the plaintiffs' title, created by the certificates of lien, may be removed. The principal questions arise upon the fifth and sixth paragraphs of, the first count of the complaint, which are as follows: "(5) The said warden and burgesses have at no time since the date of said meeting of said freemen ascertained or determined, or attempted to ascertain or determine, whether the property of the plaintiffs hereinafter described was or would be benefited by said general system of sewerage. Neither have they ascertained or determined, or attempted to ascertain or determine, to what extent, if any, said property of the plaintiffs was or would be benefited by said system of sewerage; nor have they made, or attempted to make, any assessment of benefits on said property of the plaintiffs to defray any part of the cost of said system of sewerage otherwise than by the resolution set out in Exhibit C; nor have they agreed, or attempted to agree, with the plaintiffs, or either of them, as to the amount of benefit, if any, which said system of sewerage was or would be to the plantiffs' said property, or any part thereof. (6) Without said warden and burgesses having ascertained or determined, or having attempted to ascertain or determine, whether the property of the plaintiffs was or would be benefited by said system of sewerage, and without having ascertained or determined, or having attempted to ascertain or determine, to what extent, if any, said property of the plantiffs was or would be benefited by said system of sewerage, and without having made, or having attempted to make, any assessment of benefits on said property of the plaintiffs to defray any part of the cost of said system of sewerage, and without having done any act or thing whatsoever in the matter of apportioning any assessment of benefits upon lands of the plaintiffs, and without having agreed, or having attempted to agree, with the plaintiffs, or either of them, as to the amount of benefit, if any, which said system of sewerage was or would be to the plaintiffs' said property, or any part or portion thereof, an application was made in the name of the warden and burgesses to the Hon. Sidney B. Beardsley, a judge of the superior court, for the appointment of three judicious and disinterested freeholders of Fairfield county to ascertain and determine the apportionment of the assessment of twenty-five thousand dollars of the cost of said general system of sewerage, ordered and directed by the freemen of said borough, upon the property of such person or persons as might be benefited thereby." These paragraphs are demurred to as follows: "The defendant

demurs to paragraphs five and six, because the warden and burgesses of said borough of Stamford are not by law required to do any of the acts, the omission of which is complained of in said paragraphs; that the duties and requirements of said borough of Stamford, with reference to the acts, matters, and subjects described and referred to in said paragraphs five and six, are wholly fixed, determined, and provided for by the charter of the borough of Stamford, and the amendments thereto, and that by the provisions of said charter and amendments thereto said warden and burgesses are not required to do or attempt to do any of the acts, the omission to do which is complained of in said paragraphs, and because sections three and four of said charter, and the amendments thereto approved April 15, 1887, require and provide that the ascertainment or determination, or attempted ascertainment or determination, of whether the said property of the plaintiffs would he benefited by said system ofsewerage, and the ascertainment or determination, or attempted ascertainment or determination, of the extent of such benefit to the plaintiffs' property, and the assessments of benefits on said property of the plaintiffs, so far as said charter provides that such ascertainment of benefit or the extent thereof or that such assessment of benefits shall be maae, the same shall be made by three judicious and disinterested persons, freeholders of said county, appointed by a judge of the superior court, for the purpose of enabling said warden and burgesses to defray so much of the cost of said system of sewerage as they shall order and direct to be assessed upon the property of such person or persons as may be benefited by said system of sewerage, in conformity to a direction and order of the freemen of said borough. Second. Because it does not appear that the plaintiffs have in any manner been injured by the failure of the warden and burgesses to do any of the acts, the omission to do which is complained of in said paragraphs." The demurrer was sustained. The superior court tried the issues of fact and rendered judgment for the defendant. The plaintiffs appealed.

The reasons of appeal are grouped under three general heads. The first is that the court erred and mistook the law in sustaining the defendant's demurrer to paragraphs 5 and 6 of the first count, and to paragraph 3 of the second count of the plaintiffs' complaint, because (1) the warden and burgesses were required, before the appointment of freeholders, to ascertain and determine what property of the plaintiffs was or would he benefited by the system of sewerage'; (2) to determine to what extent the property of the plaintiffs was or would be benefited by the system ofsewerage: (3) to make an assessment of benefits on the property of the plaintiffs; (4) to agree, or attempt to agree, with the plaintiffs as to the amount of benefits, if any, which said system of sewerage was or would be to their property. The questions raised by these subdivisions depend upon the construction of the charter. Prior to 1881 the power of the corporation over sewers was confined to the limits of the borough. 8 Sp. Laws, p. 257, § 7. In 1881 an act was passed amending the charter. Section 1 authorizes the borough to provide a general system of sewerage, and to locate one or more points of discharge in the waters of Long Island sound; section 2 authorizes the issue of bonds for sewer purposes; and the third and fourth sections are as follows: "Sec. 3. The said warden and burgesses are hereby authorized and empowered to defray so much of the cost of said system of sewerage as the freemen of said borough shall order and direct, by assessment upon the property of such person or persons as may be benefited thereby; the apportionment of such assessments, and of all benefits arising thereunder, to be ascertained and determined in the same manner as is hereinafter provided for the assessment of damages. Sec. 4. Said warden and burgesses are hereby authorized and empowered, should it become necessary in order to carry out any system of sewerage contemplated by this act, to construct the same in any portion of said borough, in, through, over, into, and along any highway, water-course, river, or public property, as they may find it expedient, and through, across, or under any lands situate in said borough or outside of or beyond the corporate limits of said borough: provided that they first obtain the permission and consent thereto in writing of the owner or owners of such lands, and pay such owner or owners such sum as may be agreed upon with them as compensation for such privilege; and if such consent cannot be obtained, then the warden and burgesses shall be, and they are hereby, authorized and empowered to build and construct such sewers without consent: provided, also, that prior to the laying or construction of any such sewer or sewers the said warden and burgesses shall have paid to the owner or owners of the land or lands over, through, across, or under which said sewers are to pass, such sum of money in damages as may be fixed and determined by three judicious and disinterested persons, freeholders in Fairfield county, who shall be appointed by any judge of the superior court; and the persons so appointed shall, within twenty days after their appointment, give notice in writing to the warden of said borough, and to the other parties interested, of the time and place when and where they will meet...

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