
    PEOPLE ex rel. TROY UNION R. R. COMPANY v. ASSESSORS OF TROY.
    
      N. Y. Supreme Court, Third Department; Troy Special Term,
    
    
      February, 1877.
    Assessment.—Railkoad Company.
    Assessors or commissioners determining the assessment to be laid on the land of adjoining owners for benefit by a local improvement, cannot take into consideration the fact that structures on the land of owners assessed,—e. g., the embankment of a railroad company, —even-if wrongfully erected, enhance the expense of the improvement.
    
    If they increase the assessment in consequence of considering such facts, the assessment may be set aside on certiorari.
    
    Certiorari to review an assessment.
    
      TMs proceeding was brought to review the correctness of an assessment by the local assessors of the city of Troy, of the property of the Troy Union Railroad Company, for a local improvement.
    The local assessors in their return stated as follows : “ That in-making the excavation required for the track of the relator’s said railroad along the line of the contemplated improvement, such excavation left the lands' immediately east of the east line of their said lands very steep and high, and in many places nearly perpendicular. That the contemplated wall will not only protect the lands occupied by the said railroad company from being flooded, but will also protect said railroad property against other injuries resulting to it from the formation of the adjacent lands, as left by the relator in constructing their said railroad, and that was also considered by the said respondents in making said apportionment and assessment; that the excavation made by the relator in constructing their railroad, in many places extends into the public alley between Eighth street and the Union railroad from Hutton to Jacob streets, and much of the filling and wall required for said improvement became necessary in consequence of the excavation made by the relator in so constructing its said railroad, and that fact was also taken into consideration by the local assessors in making said apportionment and assessment.”
    Section 16 of title 40 of the city charter provides as follows : “ Whenever any improvement shall be ordered by the common council, contemplated in the foregoing provisions, except the opening or widening of streets, alleys and avennes, the expense of such improvement shall within fifteen days thereafter be apportioned and charged upon the property and persons and corporations benefited thereby, &c.” 
    
    
      
      John H. Peck and Esek Cowen, for relator.
    
      R. A. Parmenter, city attorney, opposed.
    
      
       Compare N. Y. & Harlem R. R. Co. v. Trustees of Morrisania, 7 Hun, 652, where it was held that the road-bed of a railroad cannot be assessed for benefit, for laying out a street across it.
    
    
      
      2 L. 1870, p. 1394, c. 598, tit. 4, § 16, as amended by 1 L. 1872, p. 318, c. 129.
    
   Ingalls, J.

Section 16' of the charter applies to the improvement in question. The assessment is to be made upon the property benefited. In what ratio ? Obviously in proportion to the benefit derived therefrom. This inference receives confirmation by reference to section 9 of the same title, where the following language is employed : “uponthe lands or premises benefited or intended to be benefited by the improvement within the district of assessment, in proportion to the benefit derived by such lands and premises respectively thereby.” The local assessors derive all their powers from the charter, and take no authority by implication. They are to apportion and charge the expense upon the property benefited. And their judgment is only to be exercised in determining the extent to which the property is benefited; beyond that, their work is merely mathematical.

It seems that in forming their judgment they are to regard the property in the condition in which they find it. From the report of the assessors I am unable to avoid the conclusion that they exceeded their authority and adopted an erroneous basis of apportionment and assessment, by taking into account the assumed or ascertained fact that the railroad company in constructing its railroad excavated into the public alley, and that, in consequence of such excavation, wall and filling are required which otherwise would not be necessary, or would not be so to the same extent. It is quite possible that the expense of the entire improvement may be increased by such act of the relator. Yet I fail to perceive whence the assessors acquire the authority to investigate and determine the question as to the propriety and effect of such excavation, and to allow that element to enter into their determination, thereby increasing the assessment upon the premises of the relator. The railroad company may have performed an unlawful act rendering it liable to some party in a proper action, but these assessors had, in my judgment, no authority to investigate and determine that question in this proceeding. The return shows that this matter was considered by the assessors in fixing the amount of the assessment upon the premises of the relator. How far that consideration affected their judgment we are unable accurately to determine; but regarding the a&nount of such assessment, compared with that of others, for the same improvement, I think the inference is justifiable that this element must have greatly influenced their minds in determining this question.

The provision of the charter to which we have referred did not authorize the assessors to charge the premises of the relator in proportion to the expense to be incurred in making such improvement within or along the limits of the relator’s premises, but “in proportion to the benefit derived by such lands or premises.” It not unfrequently occurs that in prosecuting an entire work of this nature some locality presents, within a very limited space, compared with the extent of the improvement, obstacles which require a very large expenditure to remove or overcome, and quite out of proportion to the expense of the entire work. Yet such expense is not to be charged upon the particular section, but is to be extended over the entire district of assessment. Whether such extraordinary expense is the result of a natural or artificial obstruction, or whether its existence is attributable to the wrongful act of the owner of the- premises, the assessors are not authorized to adjust in such proceedings. The relator insists that it only possesses the right to use the premises in question for a particular purpose, and when that use ceases the land reverts, and that the charge is obviously greatly .disproportionate to any benefit to be derived from the improvement, and that it is to be inferred that the assessors assumed in making the apportionment that the relator owned the said land in fee.

It is possible that the assessors may have misapprehended this question of title in making the assessment. I, however, abstain from considering that question, having arrived at the conclusion that the apportionment is erroneous, for the reason above discussed.

The apportionment must be vacated. 
      
       Compare People ex rel. Howlett v. Mayor, &c., of Syracuse, 63 N. Y. 291, rev’g 2 Hun, 433; S. C.; 5 Sup'm. Ct. (T. & C.) 61.
     