This is an appeal from an assessment made by the respondent municipality for the construction of a sewer in East Oak Avenue, Township of Moorestown. Appellant is the owner of premises known as 222 East Oak Avenue and respondents have assessed the said property for alleged benefits accruing from the aforesaid construction in the amount of $185.37. Appellant does not dispute the reasonableness of the assessment, but contends her property has not received any benefits from the construction of the sewer and therefore should not be assessed.
Appellant's property has a present sewer line which extends from the rear of her dwelling to a sewer line of a four-family apartment house owned by one Pyle, which line runs through the adjacent (to the premises of Pyle) property of one Walker and thence into the lateral sewer on Central Avenue, which is parallel to East Oak Avenue. Appellant's property has no present connection with the new sewer line in East Oak Avenue.
The question presented is: Does appellant's property receive a "peculiar benefit, advantage or increase in value" by reason of the construction of the sewer on East Oak Avenue? R.S. 40:56-27.
Appellant argues that she has an irrevocable license or easement under the lands of Pyle and Walker in gaining access to the Central Avenue sewer and hence, any increment in value of her property, based on a future contingency (that of losing her license or easement), is not a benefit upon which an assessment for a local improvement can be based. In support of this contention she cites Kellogg v. City of Elizabeth , 40 N.J.L. 274 (Sup. Ct. 1877); Beattie Mfg. Co. v. Little Falls Township , 7 N.J. Misc. 161 (Sup. Ct. 1929); Barkman v. City of Hackensack , 114 N.J.L. 506 (Sup. Ct. 1935); Gorab v. Borough of Wood-Ridge , 133 N.J.L. 162 (Sup. Ct. 1945).
The above cases are readily distinguishable from the present case. In the Kellogg case the assessment was set aside for the reason that lands which could be drained into a trunk sewer only after connecting laterals were built could not be
assessed for the cost of the trunk until the laterals were constructed. Here the necessary laterals have been constructed and it is for that construction the assessment is levied.
In the Beattie cae the line of sewer was on the opposite side of the street from prosecutor's property and it was impossible or impractical to make sewer connections across the street. Moreover, prosecutor's property was located below the level of the street and sewage would not run into the sewer. It was clear that prosecutor's property did or could receive no benefit from the building of the sewer.
In the Barkman case the court, on stipulation, measured the amount of street assessments against prosecutor's properties, based mainly on the accessibility to the main highway, and made the assessments in accordance with the benefits received by each of prosecutor's properties. The evidence was conflicting as to the extent of the benefits. The court found each property obtained special benefits in the opening of the new street.
In the Gorab case the assessment was set aside on the ground that it was not based on a present benefit in that no lots had been laid out on prosecutor's property nor had any street been projected through it along the line of the sewer or otherwise. Further, it appeared from the testimony "that building lots and houses would be impracticable." Clearly, prosecutor's property there received no present benefit.
In the instant case the new sewer in East Oak Avenue, in respect to appellant's property, meets all the requirements of a legally assessable benefit. The sewer has been constructed and is ready for immediate use. Appellant may connect her property to the sewer at any time.
There is a grave question in my mind that appellant has an absolute right to a continuous use of the sewer line across the Pyle and Walker properties. Each party contends for and against the appellant's right to a continuous user. It is unnecessary to determine that question at this time, but it is sufficient to say that her right to a continuous user is not clear. Moreover, even if ...