Clapp, Goldmann and Ewart. The opinion of the court was delivered by Ewart, J.A.D.
The City of Rahway prosecutes this appeal from a judgment entered June 26, 1953 in the Law Division of this court, by which judgment an assessment for the construction of extensions to the city's sanitary sewage system was reduced from $4.3703 per lineal foot to $4.00984 per lineal foot, which total reduction in the assessment was ordered to be paid by the City of Rahway.
August 27, 1947 the city adopted an ordinance authorizing the construction of sanitary sewers beneath certain enumerated streets of the city, as an extension to the then existing sewage system; appropriated the sum of $110,000 to meet the estimated cost thereof; and provided in section 2 of the ordinance "* * * that the costs and expenses of the said improvement shall be duly assessed upon the properties benefiting thereby in accordance with the law as a local
improvement." The extensions to the sewer were duly constructed in accordance with the terms of the ordinance at a total cost of $99,230.65; an assessor's report of the work and the cost thereof, showing the lands benefited thereby, etc., dated September 10, 1951, was duly filed; and the proposed assessments shown in the assessor's report at the rate of $4.3703 per lineal foot against the lands of the respondents benefited by the improvement was duly confirmed by city council on May 24, 1952. The improvement consisted of a trunk sewer and laterals, as shown upon a map admitted in evidence at the pretrial conference and marked Exhibit P-1. There were trunk sewers having diameters of 10, 12 and 18 inches respectively, and lateral sewers of a diameter of 8 inches joining into the main trunk sewers.
It was stipulated that sometime between the date of the adoption of the ordinance and the making of the assessor's report to city council, lands adjacent to the territory served by the sewers so constructed under the aforesaid ordinance, and which lands were vacant and unimproved at the date of the adoption of the ordinance, were improved by the construction of approximately 200 dwelling houses thereon; that the owners or developers of this tract of land formerly unimproved, constructed lateral sewers throughout the development at their own expense that were connected with and emptied into the trunk line sewer constructed by the City under the aforesaid ordinance, the connection having been made with the trunk sewer at the intersection of Milton and Richard Boulevards; and that, as of the date of the assessor's report, these 200 or more houses, constructed on lands formerly unimproved, were being served by the trunk sewer constructed by the city under the aforesaid ordinance by means of the lateral sewer lines constructed by the property owner or developer having been connected with the city sewage trunk line as aforesaid.
The map referred to above and marked Exhibit P-1 has been conveniently marked with red lines to show the line of the sewers constructed by the city beneath city streets as authorized in the ordinance; has been marked to show the
varying sizes or diameter of the trunk lines and laterals so constructed by the city; the area of the land assessed by the city for the making of these improvements has been shaded on said map in blue; certain city-owned lands adjacent to the line of the sewer and subject to the improvement assessment have been shaded in yellow on said map; and the lands unimproved at the date of the adoption of the ordinance, upon which 200 or more dwellings were constructed prior to the date of the making of the improvement assessment, upon which lands the owner or developer constructed, at his or their own expense, lateral sewers to serve the 200 dwelling houses and which lateral sewers were connected up with the city trunk line sewer, are shaded green on said map. The area so shaded in green is immediately adjacent to the area shaded in blue.
The city assessed the whole cost of the improvement at the rate of $4.3703 per lineal foot against the lands adjacent to the lines of the sewers constructed by the city under the ordinance, including lands owned by the city and shaded in yellow on the aforesaid map, and lands owned by the respondents and others and shaded in blue on said map. The city did not assess any part of the cost of the constructing of said sewers against the lands shaded in green and which lands, at the time of the making of the assessment, were actually being served by the city sewers by means of the laterals constructed by the owners of the property shaded in green and hooked into the city sewage system.
The respondents, conceiving that the lands shaded in green on the aforesaid map should have borne an equitable share of the cost of the making of said sewer improvements, appealed the assessment to the Law Division of the Superior Court pursuant to the statute, R.S. 40:56-54.
At the argument of this appeal, it was conceded by counsel for the city that the area shaded green on the said map in which 200 houses had been constructed was, as of the date of the assessor's report on September 10, 1951 and as of the date of the confirmation thereof on May 24, ...