Opinion
Argued October 26, 1959 —
Decided November 2, 1959.
On appeal from a final judgment of the Superior Court, Law Division, in which court the following opinion was filed:
"This is a statutory appeal by 11 property owners from the confirmation by the Trustees of the Village of South Orange of an assessment levied by the board of assessment of said village under which plaintiffs' lands were assessed certain sums for the cost of a storm sewer in Ralston Avenue, between Vose Avenue and Scotland Road.
N.J.S.A. 40:56-54 provides:
`* * * the owner of any property assessed for benefits or awarded damages incidental to the improvements as distinguished from damages for real estate to be taken under this chapter, may within thirty days after confirmation of such assessment or award appeal from the same to the Superior Court * * *.'
"This case has been submitted without testimony, for the court's determination on briefs and oral argument and on certain stipulated facts.
"The Village of South Orange derives its power to authorize the storm sewer improvement in question by virtue of R.S. 40:56-1 et seq. The statute authorizes the assessment commissioners to make a just and equitable assessment of the benefits conferred upon any real estate by reason of such improvement, having due regard to the rights and interests of all persons concerned as well as to the value of the real estate benefited.
" R.S. 40:56-27 provides:
`All assessments levied under this chapter for any local improvement shall in each case be as nearly as may be in proportion to and not in excess of the peculiar benefit, advantage or increase in value which the respective lots and parcels of real estate shall be deemed to receive by reason of such improvement.'
"The facts in this case, as stipulated to by the parties, indicate that assessments were levied upon all properties located in what was considered by the assessors as a single drainage area and all were assessed on the basis of the square foot area of said property with the same rate per square foot applicable to all properties. While all the assessed properties were deemed part of a single drainage area, it is recognized that the plaintiffs' lands have a higher elevation than certain other lands in the drainage area. The storm sewer in question was authorized and constructed in order to provide for the safe and orderly use of the streets in the lower portion of the drainage area, not adjoining the plaintiffs' properties, and in order to avoid the hazard of, and interference from, flowing surface water as well as to protect properties which are at a lower leved than the drainage area and do not abut plaintiffs' properties. The sewer was constructed underground except for its catch basins and became and is a part of the existing drainage system of those portions of the following streets lying in such drainage area: Ralston Avenue, Scotland Road, Charlton Avenue and Raymond Avenue. Except for this underground sewer and its catch basins, the drainage system for the portion of those streets under consideration consists of street surfaces, including Belgian block gutters which are erected at the edge of the driving surface of the streets and which carry off surface water to the storm sewers in question.
"The fact stipulation goes on to recite:
`As a result of rainfall and/or melting snow or ice, water at times flows from the lands of the plaintiffs in varying volume, however, neither the velocity nor direction of surface water runoff from the lands of the plaintiffs have been changed by the improvement in question, nor does said improvement prevent water from draining across plaintiffs' lands or backing up onto the lands of any of said plaintiffs. Said surface water is carried to the storm sewer in question by open Belgian block gutters which are adjacent to the plaintiffs' properties, however, the parties agree that the lands owned by the plaintiffs are not contiguous to the storm sewer improvement and are not contiguous to any pipe or pipes carrying surface drainage into said storm sewer.'
"The question for the court's determination here is simply whether or not the sewer improvement provides a peculiar benefit to the property of the plaintiffs as such benefit is contemplated by the statute and the cases which interpret it. While it is recognized that several of the leading cases in this area of the law take different approaches to the problem of assessing for storm sewers, all the cases are quite clear in standing for the proposition that the basis for such an assessment must be a peculiar benefit derived by the property assessed. The law on this subject was set forth by our Appellate Division in the case of In re Public Service Electric Gas Co., 18 N.J. Super. 357, at page 363 ( App. Div. 1952), where the court said:
`* * * Assessments as distinguished from other kinds of taxation, are those special and local impositions upon the property in the immediate vicinity of municipal improvements, which are necessary to pay for the improvement, and are laid with reference to the special benefit which the property is supposed to have derived therefrom. 14 McQuillin, Municipal Corporations (3 d ed.), sec. 38.01, pp. 11-15. The foundation of the power to lay a special assessment or a special tax for a local improvement of any character, whether it be opening, improving or paving a street or sidewalk or constructing a sewer, or cleaning or sprinkling a street, is the benefit which the object of the assessment or tax confers on the owner of the abutting property, or the owners of property in the assessment or special taxation district, which is different from the general benefit which the owners enjoy in common with the other inhabitants or citizens of the municipal corporation. Accordingly, it is now well settled in most jurisdictions that adjacent property may be specially assessed to defray, in whole or in part, the cost of local improvements by which such property is especially benefited. That doctrine, as stated, is based for its final reason on enhancement of values. That is to say, the whole theory of local taxation or assessments is that the improvements for which they are levied afford a remuneration in the way of benefits. Whether the property has been specially benefited by an improvement is generally regarded a question of fact, depending on the circumstances in each case, for the determination of the proper tribunal. The broad question is whether the general value of the property has been enhanced, not whether its present owner receives advantage. McQuillin, supra.'
And at page 364:
`* * * In determining whether property has been benefited, the question is whether the market value of the property has been increased by the improvement and it is not confined to benefits conferred for the particular use it is being devoted to at the time. In the absence of other proof, the commissioners' report is conclusive on the question of benefits. State (New Jersey Midland R. Co., Prosecutor) v. Mayor, etc., of Jersey City, 42 N.J.L. 97 ( Sup. Ct. 1880). The burden of overcoming the presumption of validity is cast upon the owner and it must be by clear and cogent proof. Morris v. City of Bayonne, 53 N.J.L. 299 ( Sup. Ct. 1891); Ringer v. City of Paterson, 98 N.J.L. 455 ( E. A. 1923); Gorab v. Borough of Wood Ridge, 133 N.J.L. 162 ( Sup. Ct. 1945).'
The term `benefit' is defined by the Appellate Division in the Public Service case, supra, at page 365, as being
`the increment of value to land affected by improvement. It represents the difference between the market value of the lands before the improvement and the market value of the land immediately after the improvement.'
"In Township of Millburn v. Smith, 9 N.J. Misc. 307 ( Sup. Ct. 1931), a case dealing with an assessment for a storm sewer, the court held:
`"The benefit which will justify such an assessment must be a present appreciable benefit. * * * When an assessment on property is certified to have been imposed for benefits, it will be presumed that the property has been in some mode benefited, and the presumption can only be overcome by clear and cogent proof. If it thus appears that property assessed for a sewer has been afforded neither kind of drainage, or no drainage which it had not previously possessed, such presumption will be overcome." Morris v. City of Bayonne, 53 N.J.L. 299, 305.'
"The proofs in that case, the trial court held, rebutted the presumption that benefits arose from the assessment.
"It is agreed in the present case that neither the velocity nor the direction of the runoff from the lands of the plaintiffs has been changed by the improvement in question. Nor does the improvement prevent water from draining across plaintiffs' lands or backing up onto those lands. Has there, then, been any benefit conferred to plaintiffs' lands by the storm sewer improvement? A review of the leading cases on this subject indicates that there has been no benefit conferred which may be the basis of a proper assessment.
"In Breakenridge and Tichenor v. [ City of] Newark, 94 N.J.L. 361 ( Sup. Ct. 1920), the court held that a mere lack of tapping facilities is not enough to exclude a landowner from assessment for benefits where the public work is a surface water drain.
`because it may remove the water from his land more rapidly, and if his land is within the drainage area, it cannot be said that want of tapping facilities puts him beyond the pale of deriving any benefit from such a sewer or drain.
The court makes it clear that if a person's land derives some benefit in the manner in which water is drained from his land, he may be assessed for an improvement.
"The Court of Errors and Appeals reversed the above cited decision of the Supreme Court on the grounds that property owners were not given a statutory hearing before the city commission. In its opinion, the Court of Errors and Appeals, at 95 N.J.L. 436, supported the Supreme Court regarding tapping facilities and said that despite the lack of tapping facilities,
`there may well be a present benefit although the lands do not abut on the sewer; the drainage of the surface water may well be facilitated. Whether it is in fact facilitated is for the commissioners to determine.'
"From the two decisions in the Breakenridge case, it is apparent that while a property may be assessed for a storm sewer improvement where that particular property has been given no tapping benefit, there must be a benefit conferred to that property by way of drainage being more rapid or being facilitated.
"In Maplewood [ Township in Essex County] v. Smith, 112 N.J.L. 233 ( E. A. 1933), the Court of Errors and Appeals affirmed per curiam the opinion of the circuit court judge below who held that certain properties were not benefited by the construction of a drain where the drain, including previously constructed laterals, did not pass by the property in question so as to give it a tapping benefit or the right to a tapping benefit, where the drain or lateral was so situated that it did not intercept water which `were it not for the construction, would pass over or in front of it.'
"The theory of the assessment in the case of In re Hazeltine, 23 N.J. Super. 154 ( Law Div. 1952) was that the properties in question received a peculiar benefit where the laterals of the system intercepted drainage water which might otherwise have passed over on in front of the properties assessed. That case concerned the construction of a new, enlarged outlet and the court held that a property owner whose drainage is carried or facilitated by the drainage system receives a peculiar benefit by reason of the furnishing of a new, enlarged outlet `made necessary by the improvements accelerating the descent of the storm water * * *.'
"While the cases mention a tapping benefit as a benefit that may be the basis for an assessment, it should be pointed out that in the case of storm sewers the question of tapping is not paramount as it is in the case of sanitary sewers. See Breakenridge and Tichenor v. [ City of] Newark, supra. In the case at bar, plaintiffs have derived neither a tapping benefit nor a right to tap any laterals in the drainage system in question. An open gutter is not a lateral and has been so held in Maplewood [ Township in Essex County] v. Smith, supra. However absent a tapping benefit, plaintiffs may be assessed if their properties derive any other benefit from the improvement.
"In the Maplewood and Hazeltine cases, the assessments were for enlarged outlets serving previously constructed drainage systems and these assessments were held proper where the outlet handled a flow from laterals, part of the same system, and where those laterals were shown to benefit the assessed properties in some concrete manner, such as intercepting drainage water which might otherwise have passed over or in front of the properties.
"If there is no service to the plaintiffs' properties by the sewers or laterals of the drainage system, whether adjacent to that property or not, and no water is diverted from plaintiffs' properties by virtue of the sewer improvement, we may next inquire whether the flow of water in front of or across plaintiffs' properties is in any way `facilitated' by the storm sewer improvement. The dictionary meaning of the word `facilitated' is to make easy, or to assist or aid. If the flow of water draining from plaintiffs' lands remains unchanged in amount, velocity and direction of flow, it cannot be said to be facilitated. Plaintiffs' lands have derived no tapping benefit, no possibility of tapping a lateral, no facilitation of drainage and have not been benefited by the prevention of water draining across their lands or backing up onto their lands. The plaintiffs have received no benefit from the storm sewer improvement as that term is contemplated by the statute and, therefore, the assessment is invalid as to them."
Mr. Arthur L. Troast argued the cause for defendant-appellant ( Messrs. McCarter English, attorneys; Mr. Ward J. Herbert, of counsel).
Mr. Richard M. Sandler argued the cause for plaintiffs-respondents ( Mr. Alan V. Lowenstein, attorney; Mr. Sandler on the brief).
Before Judges GOLDMANN, CONFORD and FREUND.
The judgment appealed from is affirmed, for the reasons stated in the opinion filed in the court below by Judge Waugh.