Knuth v. Board of Sewer Commissioners

162 A.2d 278, 91 R.I. 164, 1960 R.I. LEXIS 77
CourtSupreme Court of Rhode Island
DecidedJune 21, 1960
StatusPublished
Cited by2 cases

This text of 162 A.2d 278 (Knuth v. Board of Sewer Commissioners) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knuth v. Board of Sewer Commissioners, 162 A.2d 278, 91 R.I. 164, 1960 R.I. LEXIS 77 (R.I. 1960).

Opinion

Roberts, J.

These four petitions were brought pursuant to the provisions of general laws 1956, §44-5-26 et seq., for relief from a sewer assessment alleged to have been illegally made against certain real estate of the petitioners located in the city, formerly the town, of East Providence. Following a hearing before a justice of the superior court sitting without a jury, he filed rescripts denying and dismissing the petitions. The cases are here on the exceptions of the petitioners to such decisions.

The parties have agreed in this court, as they did in the superior court, that the same issues are present in all four petitions and that a decision in one case will be determinative of the rights of all the petitioners to obtain the relief prayed for. For that reason in this opinion we will deal with the matter as if but one petition, that of Edward Bromage, Jr. and his wife, were before us. Further, we will disregard as surplusage such prayers in the petitions as seek equitable relief, it being clear from an examination of the record that it was the intention of petitioners to seek the relief provided in §44-5-26 et seq.

The facts material to the issue raised are not in dispute. The petitioners are the owners of lots numbered 118, 164, and 165 on assessor’s plat No. 46 of the city of East Providence. These lots are contiguous and, taken together, form a rectangular parcel of land 200 feet in depth and 80 feet in width which is bounded at the north by Aberdeen Road and on the south by Boyden Boulevard. Lot 118 comprises the northerly half of the parcel and abuts on Aberdeen Road for a distance of 80 feet. Lots 164 and 165 comprise the southerly half of the parcel, and each lot abuts a distance of 40 feet on Boyden Boulevard. The dwelling of petitioners is located entirely upon lot 118, while lots 164 and 165 are used by them for garden purposes.

[168]*168At a time in the past, not specified in the record, the East Providence board of sewer commissioners, which board it is conceded was lawfully constituted, caused sewer mains to be installed in those portions of Aberdeen Road and Boy-den Boulevard upon which the lots of petitioners abut. The residence of petitioners located on lot 118 was connected with the sewer main in Aberdeen Road by a “lateral,” so called. The main in Boyden Boulevard was not connected with either lot 164 or 165 but the “lateral” did extend from that main to the property line of each of said lots. Thereafter, on February 7, 1956, the said board made an assessment against the property of petitioners for the improvement, purporting to act pursuant to the pertinent provisions of chapter 233 of the town ordinances. The assessment thus made was confirmed by the town council and certified to the tax assessor by the town clerk.

The provisions of the ordinance which related to the assessment of charges for the improvement are contained in section 6 thereof, which reads as follows: “Whenever any such sewer main shall be constructed an assessment shall be made upon all estates abutting upon that portion of the street in which such sewer main shall be located at a rate of Five and 75/100 ($5.75) Dollars for each front foot of such estates upon such streets; provided however, that where any estate is situated at the intersection of two streets or between two streets wherein such sewer mains are constructed then eighty (80) per cent of the footage on that one of which said streets has the greater footage, shall be exempt from such assessment and in the event said footage is equal on both said streets, then eighty (80) per cent of the footage of either of said streets shall be exempt, except that in no case shall an exemption of more than eighty (80) feet be allowed.”

In levying for the cost of the sewer construction here involved, the board of sewer commissioners made a separate assessment against each of the three lots owned by peti[169]*169tioners. The petitioners, arguing that the board had misconceived the intent of the legislature, contend that the ordinance requires that the assessment be made ag'ainst “estates” abutting on the streets in which the installation has been made and that an “estate” as contemplated by the statute may comprise more than one parcel or lot. They contend that their lots, being contiguous, constitute an estate within the meaning of that term as it is used in the ordinance and that, when assessed as such, they are entitled to the exemption set out in the proviso of the ordinance, because their estate abuts on two streets in which the sewer installations have been made.

The trial justice did not agree with this contention. He found the assessment to be valid for two reasons, first, that such assessment by separate parcels is required by the provisions of G. L. 1956, §44-4-4; and second, that the town council, in enacting sec. 6 of the pertinent ordinance, intended that the cost of the installation of the sewer mains should be apportioned against abutting properties on the basis of a present or potential future demand for the use thereof and that each platted lot constituted a building site.

Inherent in the first reason for his decision as stated by the trial justice is the question whether §44-4-4 was intended to apply to all species of imposts laid under the taxing power. The statute, in pertinent part, reads: “Taxes on real estate shall be assessed to the owners, and separate tracts or parcels shall be separately described and valued so far as practicable * * *.” We are not called upon to decide whether the word “Taxes” as used therein was intended to include only imposts levied against real estate for the purpose of raising general revenues for the support of the government or was also intended to include levies made in apportioning the costs of the installation of improvements among the properties benefited thereby. This is so because, assuming without deciding that §44-4-4 is to [170]*170be construed as inclusive of all species of taxation, in our opinion it would not in the instant case require that the assessment be made on the basis of platted lots, thereby rendering immaterial an intention on the part of the town council to provide for a more liberal method of such apportionment when it enacted sec. 6 of the ordinance.

It is well settled that the requirement of §44-4-4, that real estate be assessed by separate tract or parcel, is designed to benefit the taxpayer and for that reason has been held to be mandatory in the absence of circumstances that excuse nonperformance thereunder or render performance thereof impractical. Young v. Joslin, 13 R. I. 675; Clark v. Greene, 23 R. I. 118; Acme Corp. v. Mowry, 59 R. I. 163. In other words, while the statute is mandatory in character, strict compliance therewith is not required in every instance. In Acme Corp. v. Mowry, supra, this court construed the requirement of the provision that “separate tracts or parcels shall be separately described and valued so far as practicable,” and at page 168 stated that such provision did not “require the platting of assessable land of the town into lots numbered to each owner, nor does it require meticulous description by metes and bounds. A general description which serves to identify the tract and distinguish it in such a manner as to inform the owner with certainty of the assessment and of the property upon which the tax is levied is sufficient.”

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Cite This Page — Counsel Stack

Bluebook (online)
162 A.2d 278, 91 R.I. 164, 1960 R.I. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knuth-v-board-of-sewer-commissioners-ri-1960.