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Jardine v. Borough of Rumson

Decided: May 25, 1954.

VIOLA V. JARDINE AND JOHN I. HOWE, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF RUMSON, DEFENDANT-RESPONDENT



Clapp, Freund and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).

Schettino

This is an appeal of plaintiff Howe from the judgment of the Superior Court, Law Division, in favor of defendant in plaintiff's action in lieu of prerogative writ to review an ordinance of defendant, and a levy made under and by virtue of the provisions of an ordinance adopted pursuant to R.S. 40:63-39.

By ordinance adopted June 26, 1941 and under R.S. 40:63-32 et seq. , the Borough of Rumson established "The First Sewer District of the Borough of Rumson" which is part of and geographically smaller than defendant borough. Thereafter, the sewerage plant and system situate in and

serving the district was acquired by defendant from a private corporation. Plaintiff Jardine received notice of and made no objection oral or written to the adoption of the ordinance by which the district was established.

The cost of acquisition of the sewer system in 1942 was assessed solely against each landowner within the district as a local improvement under R.S. 40:63-38 in direct proportion to the benefit he derived from the sewer in accordance with the finding of special commissioners. In 1951 the district installed a new disposal plant, the cost of which was assessed against each landowner in a similar manner. In neither case was plaintiff's land taxed by the commissioners because they found it had derived no benefit from the sewer system.

On February 26, 1942, and annually thereafter, defendant enacted ordinances to provide funds to meet the expense of operating and maintaining the sewerage disposal system. All of the ordinances are identical, except as to their respective dates of adoption, amounts to be levied and rates, and were adopted under the provisions of section 2 of the ordinance establishing the district and of R.S. 40:63-39.

These annual levies were imposed upon all the lands and real estate within the sewerage district -- whether or not the lands involved could connect with the sewer system. The ordinance under attack was passed February 26, 1953.

At and prior to the creation and establishment of the sewer district, plaintiff Jardine was the owner of real property known as 16 Packer Avenue, situate within the sewer district. Title thereto was conveyed to plaintiff Howe on October 21, 1952.

The Law Division found as a fact that plaintiff Jardine had knowledge as early as 1941 of the fact that no main pipe of the sewerage system extended past her property on Packer Avenue and that in 1942 plaintiff had knowledge of the ordinance adopted in that year and of the levy made thereunder. Plaintiff Jardine paid all of the levies until October 21, 1952, when she sold her property to plaintiff Howe.

Plaintiff Jardine took no action to review the validity of any of the levies until August 1951, when she filed with the county board of taxation a petition for the reduction and removal of the 1951 levy. The petition was dismissed by the board for lack of jurisdiction on November 8, 1951. Plaintiff Jardine instituted the present action in August of 1952. After the purchase of 16 Packer Avenue, plaintiff Howe was admitted to the action as a party plaintiff by order made January 9, 1953. The amended complaint of Howe was filed about March 30, 1953.

The total amount of levies with interest paid by plaintiff Jardine was $208.46. The levy made under the ordinance adopted February 26, 1953 and paid by Howe was $24.79. The Law Division found as a fact that all ordinances under which the levies were made were properly and legally adopted.

Although most of the facts were stipulated, the trial court received evidence on the question of laches. The court dismissed both complaints, finding that Jardine was in laches in instituting her action and charged her with knowledge, whether actual or constructive, since 1942, of the fact that the sewer did not run past her property based upon a map filed in 1942 in connection with the creation of the district which allegedly showed that no pipe existed in the street. Plaintiff Howe was found not to be in laches. His action to recover the $24.79 taxes paid and to enjoin future levies was dismissed on the ground that the sewer maintenance tax is and was valid under the 1953 ordinance since it was a valid exercise of authority conferred upon defendant by statute.

The appeal was originally taken by both plaintiffs. Plaintiff Jardine has abandoned her appeal. The appeal is prosecuted with respect ...


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