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Ballagh Realty Co. v. Borough of Dumont

Decided: May 24, 1933.

BALLAGH REALTY COMPANY, INCORPORATED, PROSECUTOR-RESPONDENT,
v.
BOROUGH OF DUMONT, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, James S. De Turck.

For the respondent (no brief submitted).

Campbell

The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. This is an appeal from a judgment of the Supreme Court setting aside assessments against lands of the prosecutor-appellant, the matter having been heard by the court on certiorari.

The municipality had, by proceedings, the legality of which is not questioned, constructed a storm water drain in certain streets and avenues. It was then found to be necessary, or advisable, to construct certain under-drains connecting up with this storm water drain. There seems to have been two methods by which this latter construction could be carried on, varying widely in cost. The less costly was the constructing of the under-drains over certain property of the Ballagh Realty Company and Clyde Christie.

This method, or plan, was adopted and deeds conveying the necessary easements were executed and delivered to the borough and the drains built.

Lands of the prosecutor-respondent, Ballagh Realty Company, were assessed for benefits arising from the construction of the storm drains; its lands over which the easements before mentioned were granted were not assessed for the benefits arising from the laying of the under-drains therein.

In the Supreme Court the prosecutor-respondent insisted that the consideration for the granting of these easements was that its lands should not be assessed for benefits arising from the construction of either the storm water drain or under-drains and, therefore, the assessments which had been levied against its lands for benefits arising from the construction of the storm water drains, were improper, violated its agreement with the municipality and should be set aside. Upon this point the municipality urged that its agreement extended only to the exemption from assessment of the lots over which

the easements were granted and then only for the construction of the under-drains.

The single affirmative action of the municipality in this direction was a resolution of April 3d, 1929, which, so far as pertinent, is as follows: "Resolved, that the attorney be and hereby is instructed to obtain easements from the Ballagh Realty Company and from Clyde Christie for the purpose of laying under-drainage along these easements from Manhattan Terrace north.

Provided that the grantors are not assessed for the cost of constructing such drainage * * *."

Depositions were taken and presented to the court below upon the question as to whether the bargain and agreement was as asserted by the prosecutor or by the municipality and that court seems to have acted upon the theory that the resolution of April 3d, 1929, was ambiguous and that these proofs were to be searched and used to assist it in construing its language. This may be open to debate but it is not necessary for us to decide the point.

There seem to be two grounds urged, upon this appeal, why the judgment of the Supreme Court is ...


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