(39 Misc. Rep. 484.)

#### Appeal of WHEELER et al.

(Delaware County Court.

December, 1902.)

1. Sewer Improvement — Assessment—Front-Foot Rule.

Laws 1897, e. 414, art. 10, § 268, provides for an apportionment of the expense of constructing a village sewer, and that, if such expense is to be assessed on the lands benefited, the sewer commissioners shall prepare a plan of the area to be taxed, and that the expense shall be apportioned within such area in proportion to the benefits received. *Hel<¡,*that the village sewer commissioners cannot lawfully adopt the front-*205foot rule of assessment where it results in assessments not in proportion to the benefits received as required by the statute.

2. Same.

In assessing for the expense of. constructing sewers under Laws 1897, c. 414, art. 10, § 268, in a village, the commissioner should consider the question whether the property to be assessed is vacant or improved, and the extent and value of any improvements.

In the matter of the appeals of R. B. Wheeler and Lucy P. Hathaway from the apportionment of a 'sewer assessment for Liberty and Pleasant streets in Sidney, N. Y. Order of commissioners reversed.

The apportionment to pay the expense of constructing such sewers was made under section 268 of article 10 of chapter 414 of the Laws of 1897, which is as follows: “If the whole or any part of the expense of constructing a sewer is to be assessed upon the lands benefited, the board of sewer commissioners shall prepare and file in the office of the village clerk a map and plan of the proposed area of local assessment. Such expense shall thereupon be apportioned upon the lands within such area in proportion, as nearly as may be, to the benefit which each lot or parcel will derive therefrom, and the ratio of such benefit shall be established.” It is alleged in the affidavit of E. B. Wheeler, submitted upon the argument, “that no map was made of said area of local assessment and filed with the village clerk prior to the construction of the sewer.” This omission, however, is not assigned as a ground of appeal in the notice filed with the clerk. The cost and expense of constructing the sewer was in part apportioned and assessed upon the property owners according to the foot-frontage rule. The R. B. Wheeler lot is situated on the corner of Liberty and Pleasant streets, and the frontage on both streets was made the basis of the apportionment by the commissioners for the cost of constructing the sewer on such streets; the lot being 66. feet front on Liberty street, and 141 feet on Pleasant street. The Lucy P. Hathaway lot is situated on the corner of Pleasant and Avery streets, and the frontage on Pleasant street was made the basis of the apportionment; the lot being 66 feet front on Avery street, and 123 feet on Pleasant street. In 1899 a sewer was constructed in front of the lot on Avery street, and connection made with the sewer on that street. Many of the lots on Liberty and Pleasant streets are 66 feet front. Others range from 94 to 160. The lots also vary in depth, and some are very irregular in shape. One lot on Pleasant street is omitted from the apportionment; being the rear of lot No. 28, with no frontage on the street, except a right of way to the street; no right to sewer to the street being conveyed. The Isaac Weaver lot, adjoining the Wheeler lot, is assessed by the town assessors at $725. The Wheeler lot is assessed at §650. The H. H. Walton lot (No. 17 on Liberty street) is assessed at $850. The school property, corner of Liberty and Pleasant streets, is valued at 840,000, with a building to accommodate 500 children.

Andrew G. Washbon, for appellant R. B. Wheeler.

Wm. Thorp, for appellant Lucy P. Hathaway.

Chas. H. Seeley, for respondent sewer commissioners.

GRANT, J.

The sewer commissioners apportioned'the cost of constructing the sewer on Liberty and Pleasant streets according to the foot-front rule, upon the theory that in their opinion the foot-front rule was the most equitable and just; and, in so doing, they no doubt believed such basis to be fair and equitable. The appellants claim that as the property upon the streets sewered varied greatly in area and value, and also as to the benefits derived, the application of the foot-front rule is not a compliance with the statute under which the apportionment is made, and is not an apportionment according *206to the benefits derived therefrom. The statute under which the apportionment is made provides:

> “Such expense shall thereupon be apportioned upon the lands within such area in proportion as nearly as may be to the benefit which each lot or parcel will derive therefrom, and the ratio of such benefit shall be established.” Laws 1897, c. 414, *§*268.

The legislature having the power to direct the method»to be pursued in apportioning the expense o'f constructing a sewer, and having adopted the benefit rule in the general village laws respecting the apportionment of the cost of constructing sewers, such method cannot be departed from.

It does not follow that the foot-front rule is necessarily erroneous. It may be the most just and equitable of any rule that can be adopted, and it may also be according to the benefits derived therefrom. O’Reilley v. City of Kingston, 114 N. Y. 439, 21 N. E. 1004. On the other hand, it may- not be according to the benefits to the property; depending entirely upon the conditions existing in each particular case. Where the lots on any street sewered are of uniform size and value, and all similarly improved or unimproved, as the case may be, the application of the foot-front rule would undoubtedly be a compliance with the statute. Where, however, the property affected varies greatly in area and value, the application of the foot-front rule is not a compliance with the provisions of the statute requiring the cost to be “in proportion, as nearly as may be, to the benefit which each lot or parcel will derive therefrom.” It cannot be seriously contended that the Wheeler lot, with a total frontage on Liberty and Pleasant streets of 207 feet, valued at $725 by the town assessors, and taxed by the commissioners for benefits at $54.63, is benefited more than the school property, with a frontage on Liberty street of 160 feet, valued at $40,000, with a daily attendance of about 500 children, and taxed by the commissioners for benefits at $53.95. The school property has an area of *2yi*times that of the Wheeler lot, as appears from the map submitted. What is true of the school property is also true, to a certain extent, of the other parcels of property on said streets with a greater area and value than the Wheeler lot. “In assessing the expenses of street improvements upon the property benefited, the general rule is to consider the effect of the improvement upon the market value of the property, and to make the assessment in view of that fact, without regard to the present use, or the purpose of the owner in relation to future enjoyment.” In re Klock, 30 App. Div. 24, 51 N. Y. Supp. 897; People v. Mayor, etc., of City of Syracuse, 63 N. Y. 291. “That makes it necessary that the assessors' should take into consideration the value of the property, and it necessarily follows that they must take into consideration the question whether the property is vacant or improved, and, if improved, the extent and value of such improvement.” Id. The Case of Klock seems to be more nearly in point than any case to which the attention of the court has been called. The case arose in this district upon an appeal from apportionment, and is a very lucid exposition of the law in cases under this statute. None of the cases to which the attention of the court has been called, apparently *207approving the foot-front method of apportioning the expense of public improvements, are cases of appeal from an assessment by the commissioners. On the contrary, they are all cases in which the question came up in a collateral proceeding, under special statutes, or in actions to remove a cloud upon the title. All of the cases apparently approving the foot-front method of apportioning the expense of public improvements are very carefully and exhaustively reviewed in Re Klock, and the discussion of that case by Judge Herrick leads to the irresistible conclusion that the statute under consideration requires the expense of constructing a sewer to be apportioned according to the benefit to be derived therefrom, and that such ratio cannot be established without taking into account the benefits, as well as the frontage and the value of the property to be assessed. The value of the property alone would not be a proper basis for apportioning the cost of public improvements like a sewer. The benefit to the property must also be considered. In the case of the Hathaway lot, the fact that a sewer had previously been constructed on Avery street, and • sewer connection made on that street, should be taken into consideration by the commissioners in determining what benefit, if any, the line of sewers on Pleasant street would be to the property. I am therefore of the opinion that the sewer commissioners adopted an erroneous rule in apportioning the expense of the sewer on Liberty and Pleasant streets, and the order of the sewer commissioners should be reversed, and three disinterested freeholders of the village should be appointed commissioners to make a new apportionment.

Order of sewer commissioners reversed.

¶

 2. See Municipal Corporations, vol. 36, Cent. Dig. § 1111.