Mayor v. Morris

• Decision Date: 08 November 1897
• Citation: 38 A. 819,61 N.J.L. 127
• Parties: MAYOR, ETC., OF CITY OF BAYONNE v. MORRIS et al.
• Court: New Jersey Supreme Court

38 A. 819

61 N.J.L. 127

MAYOR, ETC., OF CITY OF BAYONNE

v. MORRIS et al.

Supreme Court of New Jersey.

Nov. 8, 1897.

(Syllabus by the Court.)

Proceeding by the mayor and council of the city of Bayonne to assess benefits resulting from the construction of a sewer. Heard on motion to confirm report of commissioners appointed to make the assessment, which was resisted by William L. Morris and others. Assessment confirmed.

Argued June term, 1897, before LUDLOW, COLLINS, and DIXON, JJ.

T. F. Noonan, Jr., and Allen Benny, for city of Bayonne.

De Witt Van Buskirk, for Conrad Miller and others.

G. P. Smith, for executor of William H. Gunther.

DIXON, J. At the February term, 1896, commissioners were appointed by this court to make an assessment for benefits resulting from the construction of a sewer from Cottage street, through Fifth street and Ingram avenue, to the Kill Von Kull, in the city of Bayonne, in lieu of a former assessment which the court had set aside. The commissioners having presented their assessment to the court, the city, on due notice to all parties interested, now moves that the same be confirmed. Several years ago, a sewer known as the "Cottage and Fifth Street Sewer" was constructed, which emptied its sewage into a tidal creek opening in the Kills. For this an assessment was levied by the city upon the property drained. After a while the discharge from the sewer created a nuisance around its outlet, and the court of chancery, on bill filed by an owner of land in the neighborhood, enjoined the city from permitting the discharge to continue. In consequence of this, it became necessary to extend the sewer, and the present sewer was accordingly built, to carry the sewage directly into the Kills. In determining the benefits derived from this new sewer, therefore, two distinct conditions had to be borne in mind,—the property drained into the old sewer, which had been rendered almost useless by reason of the injunction of the court of chancery, and was now restored to efficiency by the new sewer; and the property not drained into the old sewer, but for which drainage was provided by the new one. The commissioners whose assessment is before us seem to have dealt with these two conditions equitably. So far as we have been able to discover the principle of their assessment, it is that, with regard to the first class of property, the old and the new sewers should be deemed a unit, the value of the benefit afforded by this unit should be...