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Sahl v. Township of West Deptford

Decided: October 29, 1954.

CATHERINE SAHL AND FRANK SAHL, PLAINTIFFS-APPELLANTS,
v.
THE TOWNSHIP OF WEST DEPTFORD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, LOCATED IN GLOUCESTER COUNTY, AND LAURA M. HERITAGE, DEFENDANTS-RESPONDENTS



Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

Counsel agree that the sole issue on this appeal is one of fact: Did plaintiffs' property receive any peculiar benefit, advantage or increase in value by reason of defendant township's laying of a water main in and along Hess Avenue adjoining the property. The Law Division decided a direct benefit did accrue to the property and that the township had the right to assess a due proportion of the cost of the water main against the property by reason of that benefit. Plaintiffs appeal from the consequent judgment.

Plaintiffs own three building lots at the corner of Hess Avenue at Tatum Street, West Deptford Township, upon which they erected a dwelling house and garage in 1948. Their

home fronts on Tatum Street, whose center line divides the township from the City of Woodbury. At the time the home was built, plaintiffs installed their own three-quarter-inch water line connecting the dwelling with the Woodbury six-inch water main. This private line runs southeastwardly from the residence, across Tatum Street to the main in Hess Avenue, so that it lies partly in the township and partly in the City of Woodbury. Plaintiffs are still drawing their water from this source. At the time this connection was made, the township had no water system or mains from which plaintiffs could have secured water.

Pursuant to an ordinance passed by the township governing body providing for the laying of water mains in and along certain streets and highways of the township as a local improvement, the cost thereof to be assessed to the properties benefited thereby, a six-inch water main was laid in Hess Avenue and for a short distance at right angles into Tatum Street, so that it adjoined plaintiffs' property along the full depth of the three lots and along part of their frontage. Subsequently an assessment in the amount of $851.89 (plaintiffs claim the correct figure to be $637.09) was made against plaintiffs' property for benefits alleged to have accrued thereto by reason of the improvement. The assessment was thereafter confirmed by the township governing body. Plaintiffs do not attack the ordinance, the report of the assessor or the resolution confirming the assessment. They claim, simply, that their property never received any peculiar benefit, advantage or increase by reason of the improvement.

N.J.S.A. 40:56-27 provides:

"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."

The special and peculiar benefit which legalizes an assessment for local improvements must be a present benefit immediately accruing from the construction of the work, the

test being the influence of the improvement on the present market value of the property. Landowners cannot be assessed for intended benefits which may never be realized; mere speculative benefits are not, in reality, benefits. Defendant township agrees with these propositions as stated by plaintiffs, but alleges that the benefit to plaintiffs' property was a present one and came into being immediately upon the completion of the improvement.

The gist of plaintiffs' argument is that they have a present and adequate supply of water by reason of the three-quarter-inch line connecting their property to the Woodbury main, and hence no benefit ever accrued from the installation of the township main. The question is not whether plaintiffs have any present use for the improvement, but whether the installation of the township main, available to their property and running the full length thereof, did not confer a present benefit on the property. This court, in the case of In re Public Service Electric & Gas Co. , 18 N.J. Super. 357 (App. Div. 1952), held that even though a property does not presently use the improvement, it is still subject to assessment if benefited. And see Beazley v. Moorestown Township , 3 N.J. Super. 535, 538 (Law Div. 1949).

Plaintiffs presented two real estate brokers as witnesses who testified that the Sahl property received no peculiar benefit, advantage or increase in value by reason of the improvement. The testimony of the township's two real estate brokers was exactly to the contrary; they testified that the property had an increased marketability because of the municipal water service made available by the new main, and that ...


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