
    THE TOWNSHIP OF MILLBURN, IN THE COUNTY OF ESSEX, A MUNICIPAL CORPORATION, PROSECUTOR, v. WILLIAM A. SMITH, JUDGE OF THE ESSEX COUNTY CIRCUIT COURT, TRAVIS H. BROWN, Jr., AND OTHERS, DEFENDANTS.
    Argued January 20, 1931
    Decided February 13, 1931.
    Before Justices Parker, Campbell and Bodine.
    Eor the prosecutor, Reynier J. Worteniyhe, Jr.
    
    Eor the defendants, Whiting <& Moore.
    
   Per Curiam.

The Circuit Court set aside an improvement assessment for ■ benefits to certain lands in Millburn township alleged to-arise from the construction of a storm water drainage system.

The lands affected by the assessment set aside at the Circuit are on a hillside above Wyoming avenue, where the drainage-system in question was constructed. The lands are above and do not face upon that thoroughfare. No direct connection with the drain is afforded and it in no sense relieves the land from surface water passing over it.

The proofs before the Circuit Court rebutted the presumption of benefits arising from the assessment. Home Eule act as amended. Pamph. L. 1917, art. 20, p. 383, § 30. Without the storm water sewer Wyoming avenue could not have been paved without great risk of damage when heavy storms occurred. But in no way are the lands in question shown to be benefited by this improvement.

“The benefit which will justify such an assessment must be a present appreciable benefit * * *; when an assessment on property is certified to have been imposed for benefits, it will be presumed that the property has been in some mode benefited, and the presumption can only be overcome by clear and cogent proof; if it thus appears that property assessed for a sewer has been afforded neither kind of drainage, or no-drainage which it had not previously possessed, such presumption will be overcome.” Morris v. Bayonne, 53 N. J. L. 299, 305.

Even though we did not agree with the findings of fact under review, we would be loath not to sustain them if there was evidence to support them. Hoboken v. Babbitt, 2 N. J. Mis. R. 505; affirmed, Hoboken v. Greenberg, 101 N. J. L. 406.

The certiorari will be dismissed.  