People ex rel. Marvin v. City of Brooklyn

By the Court, S. B. Strong, J. This being a common law certiorari, we can review only the questions of jurisdiction, add whether the proceedings have been conformable to the statute. It is objected that the assessment upon the property of the relators, and of others, lying northeasterly of Atlantic street, was extra territorial, and so far transcended the jurisdiction con [174] ferred by the statute upon the corporation, in such cases. The statute provides “ that the expenses in the construction, of sewers shall be assessed and be a lien upon the property to be benefited thereby, in proportion to the amount of the benefit.” The jurisdiction conferred is limited to the property to be benefited. When it becomes a question of fact whether the proposed improvement will be advantageous to the property in any designated direction, the decision of the corporate authorities is conclusive. But then there must be a question—something to decide. I mean of course where the district is not clearly included. If it is entirely clear that any portion of a proposed district cannot be benefited, then an attempt to render the property in it liable to pay a part of the expenses should and would fail; if not before the corporate authorities, certainly before a judicial tribunal having the power to annul or correct the proceeding. Otherwise the statutory authority might be exercised in such a manner as to effectuate great and irrelievable oppression. The principle is well stated in the case cited by the minority of the committee of the common council. (Le Roy v. The Mayor &c. of New York, 20 John. 430.) The court there says, “ who are to be comprehended in an assessment depends upon the principle on which it is made: that must be determined by a sound construction of the law applied to the facts. It does not rest in the discretion of those who are to execute the law. The superintending power of this court is competent to establish the principle and compel the inferior authority to be governed by it, leaving to its discretion the manner of levying and the amount of contribution to be exacted from each individual.” The facts in this case, or such of them as are necessary for its decision, do not seem to be disputed. There is not any connection by sewer between the lots on the northeasterly side of Atlantic street and the projected sewer through Warren street. There cannot hereafter be any, so long as the tunnel constructed by the Long Island Rail Road Company shall remain. That appears to b'e a permanent structure, and there is no probability of its discontinuance. Previous to the construction of the tunnel, the waters from the lots in question passed off on the same [175] side of Atlantic street. They did not flow through Warren street at all. It is clear that if there had been no change in this particular the relators’ property could not have been benefited by the proposed sewer. It could not have carried off any of their redundant or deleterious fluids, or any that would have been injurious to them, except possibly by a general contamination of the air of the city, which would have been too remote to be taken into consideration. When, however, the tunnel was constructed, the contractors, in order to build it with the greater facility, carried the waters which would have flowed on the northeasterly side of Atlantic street, by a change of the grade, across the street, so that they have since passed off through Warren street. One of those contractors testified that they changed the grade as a temporary measure for their own accommodation, and that he had left the gutter still leading the water across the street because he did not know who was to pay him for the requisite work if he should restore that part of the street to its pristine condition. It would seem, however, that such restoration would be facile, and that the continuation of the gutter is unnecessary. Under such circumstances it is the right of the relators and their associates to have the waters flow from their property in their former and natural channel, and it would seem to be doing them a double wrong, first to divert the waters (certainly unnecessarily after a short interval) and then to impose a burthen upon them which, but for such diversion, would have been wholly unnecessary. Besides, the improvement in Warren street audits vicinity cannot be fully carried out, as to the relators, as they can have no connecting sewer; and if they should hereafter require a sewer for the benefit of their property they could not call for a contribution from the property holders on the other side of the street. That, of itself, probably might not be a reason for wholly exonerating them from a contribution if their existing connection resulted from the original territorial structure. But as it did not, and as, in the event of a restoration, which is probable, and which they have a right to require, they would derive no possible benefit from the projected work, they ought not to be called [176] upon for a contribution towards its construction. Their property is beyond the limits of rightful assessment. [Kings General Term, October 14, 1856. The proceedings of the corporation, so far as they relate to the objectionable portion of the district, should be set aside. Brown, S. B. Strong and Emott, Justices.]