
    William R. Cone vs. The City of Hartford.
    The common council of the'city of Hartford has power, under the genera) authority to make and maintain highways and streets, to make-common sewers under the highways.
    Such'sewers, carrying off the surface water from the streets, and the filth that would otherwise accumulate upon them in a city, are to be regarded as an improvement of the public highway, and not the less so because individual property holders are benefited by the drainage of their premises.
    ■ The amendment of the charter of the. city, passed June 7,1843, which empowers the common council to lay out sewers in any_-part_of_the-city^and to assess the expenses thereof, in whole or in parh un the "pel soTiK benefited, is not to be regarded as conferring 'he povtei' to make severa in tbe highways, but as intended merely to give th« <«m?'icou oouiielt:. highways, but as intended merely to give the cojumon council power to assess the expenses of suchsewers upon Individuáis.
    The'amendment of the charter, passed June 21,1849, which provides that, whenever a common sewer shall be laid out in whole or in part across the land of individuals, the common council shall appraise and pay to the owners of land taken the damages caused thereby, applies only to the laving of sewers across lands that are strictly private, and no part of the public highway. The common council having the power to lay out common sewers as incidental to the power to maintain highways, it is not necessary that there should be any formality in its proceedings, so far as the mere laying out of the sewer is concerned.
    Theterm “ laying out,” acappliedJ.o_sewers, does nothave the technical mean- • Tug" which it has' when applied to the_ests&llshme]p^^
    *The common couiicil was authorized by statute to assess the ex- [ *364 J penses of any such sewer, on any person or persons who might, in the opinion of the council, be in any manner benefited thereby. The plaintiff owned a piece of land adjoining the highway jointly with another person, but occupied a part of.it in severalty. He was assessed individually for a benefit to the land. In an action to recover back the money collected on the assessment, it was held, that even if the action of the common council could be revised, which was very questionable, and if the assessments could legally be made only on persons having an interest in the adjoining lands, yet the court could not know that there were not benefits accruing to the plaintiff, by reason of his exclusive occupancy of a part of the land, in which the other joint owner did not participate, and. which the common council had in view in making the assessment, and that, in the absence of any proof to the contrary, it would be presumed that the common council found such exclusive benefit to exist.
    The plaintiff further claimed that the assessment was illegal because the sewer was so laid as to discharge itself into a small stream running through the lands of individuals, and was therefore a nuisance and liable to be abated as such. Held that, while no objection was made by the owners of the lands through which the stream ran, the plaintiff could not, in the present action, complain of the assessment as invalid on that ground; and that if he could make the objection, yet it would be presumed, in the absence of proof to the contrary, that the common council had taken the requisite measures to acquire a legal right so to discharge the sewer.
    Assumpsit, to recover a sewer assessment paid by the plaintiff.
    The case was tried on the general issue dosed to the court and the following facts found:—The plaintiff paid to the collector of. the city the sum of $102.41, to prevent the sale of bank stock belonging to him, on which the collector had levied a warrant for the assessment. The sewer was laid out and constructed by the common council of the city, in Lafayette and Park streets, on the application of five residents and property owners upon those streets. The plaintiff was the owner of a tract of land situated on the east side of Lafayette street and bounding west thereon, and bounding also on Washington street, upon which his dwelling-house was situated. Lafayette street is an ancient highway of the town of Hartford, fifty-eight feet in width, and runs in the ■ rear of his dwelling-house. The plaintiff and his partner, William Hungerford, Esq., owned a lot of land on the west side of Lafayette street, opposite the dwelling-house of the plaintiff. In the year 1839 the plaintiff laid a drain of plank, at an expense of about [ *365 ] $150, *from his dwelling-house, under and across Lafayette street, and several feet below the surface of the ground, to the land of himself and partner, and the same was relaid in brick tile in 1849, at an expense of $112. This drain had, ever since its construction, been used and kept in repair bv the plaintiff, and had answered all purposes for draining his premises. The sewer laid out by the common council in Lafayette street, against the residence of the plaintiff, was laid on the east side of the center of the street for about seventy-five feet, and was so laid as to cut off the drain from the house of the plaintiff, but not so as to prevent its discharge into the sewer, and the same was now so discharged, but not by reason of any connection made by the plaintiff. The sewer was so laid as to discharge into a small stream of water under a culvert in Park street, which runs through lands of other individuals to Little river. The plaintiff owned no land on the west side of Lafayette street except that owned by him in common with Mr. Hungerford, and the assessment for land on the west side of the street was on account of this land. This land was occupied in part by the plaintiff for his own individual benefit, and a part ■was rented for the benefit of the firm. It was set in the town assessment list in the name of the firm, which paid the taxes upon it.
    The application to the common council for the sewer was presented on the 3d day of May, 1858, and was as follows:— “ To the Mayor, Aldermen and Common Council of the City of Hartford. The undersigned, owners of property and residents on Lafayette and Park streets, would respectfully represent that a sewer, commencing at some point in Lafayette street, and running south to Park street, thence westerly through said Park street, is much needed for the purpose of draining the premises aforesaid. Your petitioners would therefore request the council to take such immediate measures as would afford the relief needed. Hartford, May 1st, 1858.”
    The petition was referred by the common council to a committee, which, on the 24th of May, reported in favor [ *366 ] of *the construction of the sewer, and recommended a list of assessments upon the persons benefited for the estimated expense of the sewer, in which the sum of $85 was set against the plaintiff for benefits on the east side of Lafayette street, and the sum of $12 for benefits on the west side. The report was accepted and the following votes passed :— “ Voted, That a sewer of oval form be constructed of brick and cement, in Lafayette and Park streets, that portion of said sewer in Park street to be of equal inside area to a circular sewer two feet in diameter in the clear, and that portion in Lafayette street to be of equal inside area to a circular sewer 18 inches in diameter in the clear ; commencing at the culvert under said Park street, about 2,500 feet west of Washington street, the bottom of said sewer to be at elevation 59.57 ; thence running easterly along said Park street on a true grade 550 feet to elevation 63.00 ; thence running easterly on a true grade along said Park street 500 feet, to elevation 70.00, opposite Lafayette street; thence running northerly along or near the center of Lafayette street 450 feet, to elevation 74.00 ; thence running northerly on a true grade along said Lafayette street, about 440 feet, to elevation 77.00, at a point opposite Wm. R. Cone’s barn or woodhouse ; said sewer as above ordered being about 1,940 feet from its commencement to its termination.
    
      “ Voted, That the highway committee be and they are hereby authorized and directed to lay out, build and construct the sewer set forth in the foregoing vote and report the same to this court.”
    The sewer was afterwards constructed by the highway committee, upon whose report that the same had been completed, a committee was appointed to review the assessments first made upon the persons benefited by the sewer. This committee assessed the same sums against the plaintiff that had before been assessed against him. Certain facts were found by the court with regard to the notice of their proceedings given by the common council, and some further details of their action in laying out the sewer, but which become unimportant in the view of the case taken by the court.
    *An amendment to the charter of the city of [ *367 ] Hartford, passed June 5, 1829, provided that the city should have power, and that it should be its duty, to make and repair all public streets and highways within the limits of the city, and gave to the court of common council “ all necessary powers to make and repair streets, highways and roads in said city.”
    An amendment to the charter, passed June 7,1843, with regard to common sewers, is as follows :
    “ The court of common council of the city of Hartford shall be, and they hereby are, authorized and empowered to la}* out, build and construct, or cause to be laid out, built and constructed, drains and common sewers in any part or portion of said city, and to assess the expenses thereof, or such part of said expenses as said court of common council shall deem just and reasonable, upon any person or persons who are, or may be, in the opinion of said court of common council, in any manner benefited thereby.”
    A further amendment on the same subject, passed on the 21st of June, 1849, contained the following provision : “ That whenever the court of common council of said city shall lay out, or cause to be laid out, a drain or common sewer in said city, in whole or in part through or across the land of individuals or corporations, they shall, by themselves' or their committee, appraise the damages to such lands caused by taking the right of way to construct and repair such drain or common sewer through or across such lands, and shall notify the owners of such lands of such laying out and of the damages allowed.”
    Upon these facts the case was reserved for the advice of this court.
    
      Ilungerford and Cone, for the plaintiff.
    1. The plaintiff was the owner of the land on ■which the sewer was in part laid. It is found that, for about seventy-five feet, it was laid on the east side of Lafayette street, in front of the plaintiff’s premises. The street is an ancient highway. The plaintiff therefore, upon well settled principles, owned to the middle of the street, subject only to the easement of [ *368 ] *the highway. Watrous v. Southworth, 5 Conn., 305. Norwich Gas Light Co. v. Norwich City Gas Co., 25 id., 19. Imlay v. Union Branch R. R. Co., 26 id., 249.
    2. The laying out of the sewer was the imposition of a new servitude upon the land, not included in the objects for which it was originally taken as a highway. It was claimed by the defendants in the court below, that the right to make a sewer under a street is incident to the public right in the street", as necessary for the preservation of the street and for the convenience of the public travel thereon. But a sewer constructed merely to carry off the drainage from sinks and privies is a very different thing from a sewer to carry off the surface water from the street, if however the right to make the sewer is referable to the right of the city to repair the streets, then there is clearly no right .to assess the expenses of its construction upon the adjoining owners, for there is no authority for charging upon individuals the cost of making, and repairing highways. The right to make .the sewer, if it exists, must be referable wholly to the statutes of 1843 and 1849, which expressly give to the common council the power to lay out and construct common s.ewers, and before the. passage of which the power was never-exercised, the first of the acts merely giving the power, as if it had never existed before, and the latter providing that compensation shall be made to the owners of land taken for the purpose. If the power is, as we claim, dependent on these statutes, the proceedings of the common council have been illegal, as no damages have been assessed to the plaintiff for his land taken.
    3. The sewer was not “ laid out,” within the meaning of the statute. The land taken for it should-have been designated by definite marks and boundaries. Here the location of the sewer is wholly indefinite. It does not state on which side of the road it is laid, nor, with any exactness? where it begins or where it ends. The term “ laying out ” has acquired in this state a technical meaning that is well understood. Williams v. Hartford & New Haven R. R. Co., 13 Conn., 110.
    *4. The sewer was not a legally established one, [ *369 ] because, by reason of its discharging itself into a stream running through lands of other individuals, it is a nuisance, and as such liable to be obstructed and abated by any individual injured. It can not be lawful to compel the plaintiff to pay an assessment for a sewer that the city has no right to maintain.
    5. The assessment of the $12 upon the plaintiff, for benefits to the land on the west side of Lafayette street, was illegal, as the land was not owned by him in severalty, but in common with another. There could not have been any private benefit to the plaintiff. Williams v. Brace, 5 Conn., 190. Tucker v. Maitland, 29 Eng. L. & E., 208.
    
      Goodman and Hubbard, for the defendants.
    1. The common council possessed the power to lay out and construct sewers, before the passage of the act of 1843, as incidental to the general power to make and maintain highways and streets within the city. The act of 1843, so far as it authorizes the making of sewers, is to be regarded as merely confirmatory of the former common law, and so far as it authorizes the assessment of benefits, as an enabling act. There is a great variety of urban servitudes, well established as incidental to the highway servitude, such as laying water pipes, building tanks and hydrants in the streets, laying gas pipes, and the like. Angell on Highways, sec. 25. Plant v. Long Island R. R. Co., 10 Barbour, 26. Chapman v. Albany and Schenectady R. R. Co., id,, 360. Milhan v. Sharp, 15 id., 193. The connection of a common sewer with the maintenance of the highway and the convenience of the public in traveling thereon, is much more manifest, as by means of it the surface water, which would otherwise injure the highway and incommode the public travel, is carried off. It can of course be no objection to the sewer that it is under the surface of the ground. It is just as lawful to make a drain under as above the surface, while it may be far more for the public convenience. And it is none the less an improvement of the highway, that it is also a convenience to [ *370 ] the *owners of adjoining lands. The benefit which ' theyderivefrom it is only incidental. It is no reply to say that if the sewer is laid out as an improvement of the highway, there can be no assessment of the expenses upon individuals. The legislature has a perfect right to authorize the assessment upon individuals of the «expenses of making or repairing highways, and here the assessment of these expenses is expressly authorized by the statute.
    2. The act of 1849, which provides for an assessment of damages for land taken for the construction of a sewer, applies only to the case of private lands taken. The act was merely intended to enable the common council to carry the sewer outside of the highway limits. This is evident from the language of the act— “ whenever the common council shall lay out a sewer in whole or in part across the land of individuals,” &c.
    3. The sewer was laid out in a proper manner. The term “ laying out,” as here used, is wholly different in its meaning from the same term when used with reference to highways. Even when applied to highways, it does not mean the mere designation of the line of the highway, but all the series of acts necessary to the establishing of the highway. Wolcott v. Pond, 19 Conn., 597. But if it is to be regarded as meaning here a designation of the line of the sewer, then we say that the designation was sufficiently definite. It can only be necessary that the line be designated with reasonable certainty. Here the termini are given, and the general course along Park and Lafayette streets, with the distances in each street. Besides, where the sewer is laid in a public street there is no necessity for determining in what precise place the sewer shall be laid, as the common council are invading no private rights in laying it. In the case of a highway the statute requires a survey and particular description. It is necessary there, that it may be seen precisely what lands of private individuals are taken, and that the exact limits of the highway may always be known.
    4. The plaintiff can not object to the assessment for the sewer
    on the ground that other parties may have a right to [ *371 ] *treat it as a nuisance and abate it. It does not appear that any parties have that right, and, if it did, so long as they in fact make no objection, the plaintiff can net.
    5. The assessment of $12 against the plaintiff for benefits to the land on the west side of Lafayette street, is claimed to have been illegal, because the land belonged to the plaintiff in common with another person. But this court can not review the action of the council in the matter. By the statute they may assess such persons as in their opinion are benefited. They had jurisdiction to assess the plaintiff, who confessedly had an interest in the land, and their action is final. The King v. Justices of Norfolk, 1 Nev. & Mann., 67. The King v. Mayor of London, 3 Barn. & Ad., 255. Clarke v. Brooklyn Bank, 1 Edws. Cha., 371. Townsend v. Hoyle, 20 Conn., 1.
   Storrs, C. J.

The question in this case is, whether the proceedings of the court of common council of the city of Hartford, in laying out and constructing the sewer in question over the land of the plaintiff in Lafayette street, were authorized by the charter of that city and the legislative acts amendatory thereof. The plaintiff claims that the only authority to construct that sewer is contained in the act of June 1, 1849, and that by that act it was necessary for the common council to appraise the damages to his land caused by taking it for the purpose of constructing and repairing such sewer through his land, and to take the other steps prescribed in that act in relation to a sewer laid out and constructed under it; and that, as such steps were omitted, the sewer in question was unlawfully constructed, and the assessment imposed upon and collected from him, for the benefit he derived from it, were unlawful, and therefore that its amount is recoverable in this suit. This claim assumes that the right of making and maintaining this sewer, depending upon that act, is an easement or servitude newly imposed upon the land, and for which the plaintiff is entitled to an assessment of damages as upon a new and original taking of the land for that purpose. If the plaintiff is correct *in his [ *372 J claim, that the right to construct this sewer is derived from that act, it would be difficult to resist his right to a recovsince confessedly the various steps required by it, in the making of a sewer under it, have not been taken. But we are of the opinion that, in regard to the sewer now in question, the provisions of that act have no application, but that the right to construct it depends upon previous amendments of the charter, especially those of June 5, 1829 and June 7, 1843, and which are ample for the purpose of justifying the proceedings of the common council of which the plaintiff complains. The amendment of June 5, 1829, gave to the city of Hartford the power, and made it its duty, to make and repair all public streets, highways and roads within the limits of that city, and conferred upon the court of common council all necessary power for that purpose, (Sect. 1,) and relieved the town of Hartford, from its obligation to make or repair any such street, highway or road. There can not be a doubt that, in the laying out and establishment of a highway, the right of repairing and maintaining, as well as of originally constructing it, is embraced, and that therefore when damages are assessed to a person for laying out and constructing a road upon his land, those damages include compensation as well for the repairing of such road as its original construction. Such reparation embraces and extends to the making of such gutters, drains and sewers as are necessary and proper in order to preserve the highway in good condition for the purposes for which it was made. And for those purposes we have no doubt that it is as competent to construct drains and sewers below, as it is upon the surface of the ground. On ordinary country roads the gutters upon their sides are usually deemed -sufficient to carry off the water and filth upon them. In populous places however, where they accumulate in greater quantities, or where it may be necessary for the public to use for passing and other proper purposes every part of the highway, it is frequently requisite to make the drains of the highway beneath its surface, and the safety as well as the commodiousness of the public travel, and the healthfulness of the people in its [ *378 ] *vicinity, may also require it. It is no objection therefore to a sewer in a highway that is made beneath the surface of the ground, if the circumstances render it proper so to construct it; and that the sewer in question was, in this respect, properly made, is not denied. Such a sewer, like ordinary drains and gutters, falls within the class of ordinary repairs of. the highway, and the right of making such a repair is therefore included in the damages which were assessed to the owner of the land on its original establishment. And the original right and duty of the town of Hartford being devolved upon the city, the latter had a clear right to construct the sewer in question, unless that right is taken away or abridged by some other amendment of the charter. We look in vain for any such amendment.

By the act of June 7, 1843, the common council of the city were empowered to lay out and construct drains and common sewérs in any part or portion of the city of Hartford, and to assess the expenses thereof, or such part of said expenses as the court of common council should deem just and reasonable, upon any person or persons who are or may be, in the opinion of said court of common council, in any manner benefited thereby. This'act by its terms is not limited to those parts of the city over which highways are established, but extends to every part and portion of the city. It provides for no assessment of damages to the owners of the land over which the drain or sewer is laid out, and it might admit of a question whether, for that reason, it is valid in regard to the laying out and making of a drain or sewer upon land not covered by a highway. It is not however necessary to determine that point in this case, as the sewer now in question was constructed upon an established highway, and in such a case it was clearly not necessary for the act to provide for compensation to the owner of the land for the building of such sewer, because such compensation had been already received by him, having been included in the damages paid to him for taking his land for a highway when it was originally established. This act, in our opinion, was not passed for the purpose of authorizing drains and sewers to be made *in the streets or highways of the city, for there [ *374 J was already sufficient power for that purpose, but only to enable the common council, in cases where they had a right to build them, to assess the whole or a just proportion of the expense on those persons who are specially benefited by them, and thus to relieve the city, on which the whole expense would otherwise fall, from the amount of such assessment. The constitutionally of the provision for such an assessment has not, nor, with an exception which will be hereafter noticed, has the propriety of the mode in which the plaintiff was assessed in this case, been questioned.

The act of June 21, 1849, on which the plaintiff relies, provides that whenever the common council of the city shall lay out a drain or common sewer in the city, “ in whole or in part through or across the land of individuals or corporations,” they shall appraise and pay to the owners of such lands the damages thereto, caused by taking the right of way to construct and repair the drain or sewer through or across such lands ; and provides for notice to the owners of the laying out and of the damages allowed, and for a re-appraisal of the damages on his application. We think that this act was not intended to modify or affect the power of the common council in regard to drains or sewers to be laid out and constructed in any of the streets or highways of the city, but only those which might be made elsewhere. We come to this conclusion from the peculiar language of the act, in its description of the land over which the drain or sewer therein mentioned should be laid out, and from the circumstance that, in regard to the land of individuals or corporations over which a street or highway had been established,, the common council, by virtue of the original condemnation of the land for that purpose, would already, under their right of repairing the highway, have the power to make such drain or sewer without any new assessment of damages; and it can not be supposed that it was intended by that act to subject the city to pay again to the owner of land damages for a servitude upon it for which compensation had already been once made. We coniine the operation of that act, therefore, to such [ *375 ] *lands as had not been before subjected to such a servitude, and for the imposition of which no compensation had been made, which Would limit it 'tq land not already encumbered by a highway.

This view of the act of 1849 renders it unnecessary to consider the several objections of the plaintiff founded on a want •of compliance by the common council with its particular require auents.

We do not think that there is any force in the objection to the ■manner in which the sewer in question was laid out. When the act, under which the benefit of it was assessed in part to the plaintiff, speaks of the laying out of drain’s and sewers, it does not use that term in the peculiar and technical sense which is attached to it in the statutes relating to the laying out and construction of highways, where it has been held to embrace all that sei’ies of acts which are made necessary to the complete establishment of a highway; (Wolcott v. Pond, 19 Conn., 597;) but only intended the designation by the common counicil of the locality of the sewer or drain, and its dimensions and ¡mode of construction, and this only for the purposes of their /own action and of those they might employ in building it; and it is no more necessary, in the execution of the powers respecting it, to do any formal acts in order to validate their doings as to the owner of the highway in which it is made, than it would be in the case of any other repairs made by them upon the highway, and for such repairs previous formal action by them is clearly unnecessary to their legality.

The plaintiff further claims that the sewer in question was unlawfully built, because it appears that it was made merely for the private benefit of the persons who applied for it. There is no doubt that the common council are not authorized to construct sewers for the mere private convenience or benefit of particular individuals. The power to make them flowing from and being only incidental to that of repairing highways, [ *376 ] they, can be lawfully made only when the commodiousness of. the highway for its proper purposes, and its safety, and the healthfulness of the vicinity require them. In this case few think that it clearly appears, on a just construction of the application for this sewer and the proceedings thereupon, that it was asked for and built only as a public or common sewer for the improvement of the highway. While it was wanted for this purpose, it would probably, like the most of such sewers, conduce also to the private convenience and advantage of those whose property or residence was in its vicinity ; but these consequences being only incidental to its existence, and not its principal object, constitute no legal objection to its construction by the public authorities.

We do not think that the assessment against the plaintiff for benefits to the land on the west side of Lafayette street was invalid by reason of his joint ownership with another of the land in question. The act of 1843 is so broad in regard to the power of assessing benefits from sewers, that it is very difficult to see how the exercise of'it can be revised unless it is exercised in bad faith. It authorizes the common council to “ assess the expenses of making drains and sewers laid out under its authority, or such part of said expenses as they shall deem just and reasonable, upon any person or persons who are or may be, in the opinion of the common council, in any manner benefited thereby.” The amount of the assessments, and the persons on whom they shall be imposed, are thus left entirely to the judgment of the common council, without any restriction. But if, as the plaintiff insists, we have the power of revising these assessments, and they are to be imposed only upon persons who have an interest in land in the vicinity of th.e sewer, we think that the finding on this subject is not sufficiently explicit to justify us in saying that the assessment in this case was invalid. It not only does not sufficiently appear from it, as it should, that the plaintiff had not, but it is consistent with it, and it is presumable that the common council found, that he had, by reason of his exclusive occupancy of a part of the land, such an interest in it, that he would derive from the sewer a benefit in which the other joint owner would not participate.

It is finally claimed that the construction of this sewer was unlawful, because it was so made as to discharge itself into the ^private stream of other persons without their [ *377 ] authority. It does not appear that the proprietors of that stream are so injuriously affected by such discharge that they would have a right to prevent it. If, however, it would be such a nuisance to them, we are by no means prepared to say that, while they suffer the sewer to be discharged into the stream without objection, the plaintiff can, in this action, complain of the assessment against him on that ground. But, were it competent for him to make such an objection, we think that, in the absence of any evidence to the. contrary, it is to be presumed that the city had taken the requisite measures to acquire a legal right so to discharge the sewer.

Judgment is therefore advised for the defendants.

In this opinion the other judges concurred.

Judgment for defendants advised.  