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Cases

DETERMINED IN THE

THIRD DEPARTMENT

IN THE

APPELLATE DIVISION,

March, 1897.

The J. & A. McKECINIE BREWING COMPANY, Appellant, v. THE

TRUSTEES OF THE VILLAGE OF CANANDAIGUA and John HanNAH, Respondents.

Cloud upon title - an assessment valid upon its face, but inralid because beyond the

jurisdiction of the commissioners of assessment when a party aggrieved is not confined to a remedy by appeal procided by the statute the clear meaning of a statute will not be changed by construction.

In an action brought to remove an alleged cloud upon the plaintiff's title created

by an assessment for the cost of the West Side sewer, it appeared that chapter 407 of the Laws of 1876, as amended by chapter 266 of the Laws of 1887, authorizing the trustees of the village of Canandaigua to construct and maintain sewers, and prescribing the method of procedure, provided that if the trustees were unable to obtain a conveyance of the lands, commissioners should be appointed to appraise the benefits and damages, and that the commissioners should “assess the damages, expenses and costs of construction upon the owners of property adjoining and along the line of said sewer or drain and upon the owners of such other real property, as the said commissioners may deem to be benefited by said sewer or drain," and should make a report containing their appraisements and assessments for benefits. It was also provided that if “the trustees are able to acquire, by agreement, all the real estate, rights and easements required for the sewer, commissioners shall be appointed for the pur

poses of assessing benefits.” The trustees of the village obtained, by deed, a right of way from various par

ties through whose lands the West Side sewer was to be constructed, upon condition that, if the grantors paid their assessment for another sewer which had been constructed opposite their premises, they should not be assessed for benefits arising from the construction of the West Side sewer here in question,

Third DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. The commissioners made a report in which they omitted from the property assessed all the lots over which the owners thereof had granted to the trustees

a right of way. Held, that the action could be maintained; That as the statute plainly directed the commissioners to assess the benefits upon the property “adjoining and along the line of” the sewer, there was no room for a construction which would give no force to such words; Per PUTNAM and LANDON, JJ. That the commissioners were necessarily bound by the action of the trustees in

obtaining the deeds of the right of way, as benefits could not be assessed until the trustees had acquired a right of way; Per Putnam and LANDON, JJ. That the commissioners having intentionally omitted from the assessment a por

tion of the property designated by the Legislature as benefited, the necessary effect of which was to increase the assessment against the plaintiff, that assessment was absolutely void; Per PUTNAM and LANDON, JJ. That a court of equity would take jurisdiction of the matter because the act of which complaint was made was beyond the jurisdiction of the commissioners, and because the assessment was valid upon its face and extrinsic evidence

would be required to establish its invalidity. Per PUTNAM and LANDON, JJ. By section 3 of the act of 1887 it was provided that an appeal may be taken by

a person considering himself aggrieved to the County Court, and that “upon such appeal the County Court may, by an order, affirm, alter, vacate or cor

rect said report, which order shall be final." Held, that the plaintiff's remedy in this case was not limited to the appeal to the

County Court prescribed by the statute. Per PUTNAM and LANDON, JJ. HERRICK and MERWIN, JJ., dissented.

APPEAL by the plaintiff, The J. & A. McKechnie Brewing Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ontario on on the 26th day of June, 1895, upon the report of a referee.

This appeal was transferred from the fourth department to the third department.

This action was brought to vacate an assessment and tax upon the real estate of the plaintiff made and levied for alleged benefits thereto because of the construction by the trustees of the village of Canandaigua of what is known as the “ West Side Sewer,” and to restrain the defendants from enforcing the lien of such assessment, on the ground that the same was invalid, but a cloud on the plaintiff's title.

Under the provisions of chapter 107 of the Laws of 1876, as amended by chapter 266 of the Laws of 1987, the trustees of the village of Canandaigna were authorized to construct and maintain

App. Div.] Third DEPARTMENT, MARCH TERM, 1897. sewers. The act prescribed the procedure to be adopted by the trustees in building sewers, the manner of acquiring title to a right of way across lands through which a sewer should be laid, and the manner of appraising damages and benefits. It enacted that if the said trustees were unable to obtain a conveyance of the lands, rights of way or easements required, three commissioners should be appointed to appraise the damages as well as the benefits to landowners resulting from the sewer, and that after the construction thereof the said trustees should make and file in the clerk's office of the village a detailed statement of the damages, costs and expenses incurred on account thereof.

Subdivision 6, section 3, provides as follows:

“Upon the filing of such statement the commissioners aforesaid shall proceed to assess the annount of said damages, expenses and costs of construction upon the owners of property adjoining and along the line of said sewer or drain, and upon the owners of such other real property as the said commissioners may deem to be bene. fited by said sewer or drain, or may at any time enjoy the use of the same, and in proportion to said benefit, as the same shall be determined by said commissioners or a majority of them, and they shall make a report of their assessment in writing and file the same in the clerk's office of said village. The report shall contain their appraisements and assessments for benefits, describing with common certainty the piece or parcel of land deemed to be benefited, and shall state the amount of the appraisement and assessment upon each owner, so far as such owner can be ascertained.”

Subdivision 11, section 3, provides that in case the trustees are able to acquire by agreement all the real estate, rights and easements required for the sewer, commissioners shall be appointed for the purpose of assessing benefits.

Before the said “West Side Sewer” was constructed the trustees of the village of Canandaigua acquired from ten parties, who severally owned parcels of land through which the sewer was to be constructed, a right of way across said lots, each deed from said parties containing substantially the following covenant, agreement or condition :

“This conveyance is made upon the following conditions: That, whereas, there has recently been constructed a public sewer in Main

THIRD DEPARTMENT, MARCH TERM, 1897.

TERM, 1897.

[Vol. 15. street, opposite the above-described premises; now, therefore, if said party of the first part shall be assessed for, and pay for, benefits derired from the construction of said Main street sewer, then no assessment of benefits shall be made for the construction of the sewer first above mentioned.

“The party of the second part, in constructing or repairing said public sewer, shall leave the surface of any land entered upon for such purpose, and any subsoil drains therein, in the same condition, as nearly as may be, as they were before such entry.

“As a further condition of this conveyance the said party of the first part, her heirs and assigns, shall at all times have the right to connect her private drains or sewers with said public sewer, in such manner, and for such purposes, and under such regulations in regard to the use of said public sewer, as may be adopted by said trustees.”

After the sewer was built and the statement of the cost thereof filed, the commissioners, in pursuance of the act, proceeded to assess the benefits. The referee found, referring to the ten pieces of real estate above mentioned through which a right of way was conveyed by the several owners to the said trustees, “that there were wholly omitted from the said assessment for benefits ten pieces or parcels of real estate over and upon which the said West Side Sewer was constructed, so that the same were in fact adjoining or along the line of said sewer * * *.

The appellant claims that the omission of the ten lots in question from the assessment for benefits was a plain violation of the provis ions of chapter 407, Laws of 1876, as amended by chapter 266, Laws of 1887, the effect of which was to increase the amount of its assessment for benefits; and, as when officers acting under a statutory authority materially depart from the authority delegated, they act without jurisdiction, that the whole assessment was invalid.

The amount of the tax assessed upon the plaintiff's real estate was $5,944.66.

The issues in the action were referred, and from a judgment entered on the referee's report dismissing the complaint the plaintiff has appealed to this court.

Henry M. Field and Frank Rice, for the appellant.

John Colmey and James C. Smith, for the respondents.

App. Div.] THIRD DEPARTMENT, MARCH TERM, 1897.
Putnam, J.:

It is said in the opinion of the learned referee, and claimed by the counsel for the respondents, that while the strict letter of the statute quoted in the statement of the case under which the commissioners acted required an assessment for benefits of the ten lots of land adjoining and along the line of the sewer omitted from the assessment, it should be deemed that the intent of the Legislature was that only parties determined by the commissioners to be benefited should bear the expense of construction of the sewer.

The authorities cited by the learned counsel for the defendants fully sustain his position, that when the language of a statute calls for a construction the intent is to be sought for and to control; that the letter of the statute does not always govern; that a reasonable construction should be adopted. Those authorities, however, only appear in cases where the language of the statute requires construction. When the meaning is clear, when there is no ambiguity, another principle, stated by GRAY, J., in People ex rel. Bockes v. Wemple (115 N. Y. 302–308), applies, viz. : “ The intent of the Legislature is to be sought, primarily, in the words used, and, if they are free from ambiguity, there is no occasion to search elsewhere for their meaning. As it was said in McClusky v. Cromwell (11 N. Y. 593), it is not allowable to interpret what has no need of interpretation, and when the words have a precise and definite meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. The natural and obvious meaning should be taken without resorting to subtle and forced construction."

The language of the act under consideration is not ambiguous. The commissioners are plainly directed to assess the sun to be raised upon the owners of the property adjoining and along the line of said sewer, and on the owners of such other real property as they shall deem benefited.

The claim of the respondents is that the act should be construed as if it provided that the sum to be raised should be assessed only against the property benefited by the sewer, and as if the words “ upon the owners of property adjoining and along the line of said sewer or drain” were omitted. I can find no authority for giving such a meaning to a statute that requires no construction – for hold

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