Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
The City of Clifton, New Jersey (hereinafter referred to as the "city"), appeals from the adverse judgment of the Superior Court, Law Division, setting aside an assessment for benefits to land and premises of the Public Service Electric and Gas Company (hereinafter referred to as the "company"), by reason of the construction and installation of sanitary sewer lines adjacent thereto.
The official court reporter having died, the trial judge prepared a statement of evidence pursuant to Rule 1:2-22, from which it appears that the company owns a tract of land on the northerly side of Mt. Prospect Avenue, with a frontage thereon of 716.73 feet, on the easterly corner of which is erected a building, used in conjunction with the company's utility service, and presently connected to a sanitary sewer constructed approximately 23 years ago; that the remaining portion of the land in question, approximately nine acres, is occupied by outdoor electrical apparatus, equipment, wires, and their appurtenances, all set upon or in the ground, and
that no tees or sewerage connections were installed by the city in the new sewer extension in front of the company's property on Mt. Prospect Avenue.
The city, by ordinance, authorized and completed the construction of a sanitary sewer for an additional distance of approximately 2,700 feet on Mt. Prospect Avenue from the terminus of the then existing sewer. Whereupon, the board of assessors made assessments for benefits against the abutting property owners. The company instituted a proceeding before the Superior Court, Law Division, on notice, pursuant to R.S. 40:56-54, to test the validity of the assessment, contending that no benefit accrued to its property for which an assessment could be made.
The city contends that the trial court erred in not according due recognition to the statutory presumption of validity to the assessment in the absence of proof to the contrary, arguing that the assessor's report should have been conclusive upon the trial court; that the company's premises are presently benefited; that the facilities are immediately available to the land and that the assessment was valid even though the land owner did not use the improvement available to it.
The company contends that it received no present benefit from the sewer extension and, therefore, no assessment should have been made; that the benefits, if any, are not present, but speculative; that its lands were connected with an existing sewer prior to the extension in question and that the value of its land has not been enhanced.
The assessment about which this issue revolves was levied pursuant to R.S. 40:56-27, which provides, inter alia:
"All assessments levied under this chapter for any local improvement shall in each case be as nearly as may be in proportion to and not in excess of the peculiar benefit, advantage or increase in value which the respective lots and parcels of real estate shall be deemed to receive by reason of such improvement."
Local assessments or special taxes for the payment of the cost of certain kinds of public improvements commonly [18 NJSuper Page 363] prevail and are generally sustained under the exercise of the power of taxation. But they have no relation to the exercise of the power of eminent domain, and hence constitutional provisions respecting this right have no application. They differ also from general taxes, since they are not a tax at all in the constitutional sense or as taxes are generally understood, although it has been said that "assessments for local improvements form an important part of the system of taxation." Assessments as distinguished from other kinds of taxation, are those special and local impositions upon the property in the immediate vicinity of municipal improvements, which are necessary to pay for the improvement, and are laid with reference to the special benefit which the property is supposed to have derived therefrom. 14 McQuillin, Municipal Corporations (3 d ed.), sec. 38.01, pp. 11-15. The foundation of the power to lay a special assessment or a special tax for a local improvement of any character, whether it be opening, improving or paving a street or sidewalk or constructing a sewer, or cleaning or sprinkling a street, is the benefit which the object of the assessment or tax confers on the owner of the abutting property, or the owners of property in the assessment or special taxation district, which is different from the general benefit which the owners enjoy in common with the other inhabitants or citizens of the municipal corporation. Accordingly, it is now well settled in most jurisdictions that adjacent property may be specially assessed to defray, in whole or in part, the cost of local improvements by which such property is especially benefited. That doctrine, as stated, is based for its final reason on enhancement of values. That is to say, the whole theory of local taxation or assessments is that the improvements for which they are levied afford a remuneration in the way of benefits. Whether the property has been specially benefited by an improvement is generally regarded a question of fact, depending on the circumstances in each case, for the determination of the proper tribunal. The broad question is whether the general value of the property has been enhanced,
not whether its present owner receives advantage. ...