This case concerns the propriety of assessments to recover the cost of a new public sewerage system that in part replaced an existing and functional private sewer system. After assessments of special benefits by the defendant sewer commission of the defendant city of Stamford with regard to the construction and installation of the new sewerage system at Shippan Point, the plaintiffs John B. O'Rourke et al.,
The appeal raises two issues, one procedural and one substantive. The procedural issue concerns the reviewability in this court of findings by the trial court which are denominated as "final" in the language of § 7-250. The substantive issue concerns the propriety of the trial court's conclusion that the assessments against the plaintiffs' properties should be eliminated in their entirety.
The plaintiffs contend that General Statutes § 7-250 limits the scope of our review and requires that we sustain, on procedural grounds, the judgment rendered by the trial court. Since § 7-250 states that "[t]he judgment of said [trial] court, either confirming or altering such assessment, shall be final," the plaintiffs argue that the trial court's findings, at least as to questions of fact such as the presence or absence of special benefits, are binding upon this court. We do not agree.
We conclude therefore that judicial review of proceedings brought under § 7-250 is governed by the same rules as govern appeals in civil cases generally. Maltbie, Conn. App. Proc. § 159. The language in § 7-250 that the judgment "shall be final" is consistent with similar language elsewhere; see,
The substantive issue on this appeal is the propriety of the action of the trial court sustaining the plaintiffs' appeal and setting aside all asssessments of benefits against them. The trial court sustained two alternative claims of law made by the plaintiffs: (1) the plaintiffs received no special or peculiar benefit from the new sewerage system installed by the defendant; and (2) the defendants failed to allocate damages for the taking of the plaintiffs' private sewerage system. In connection with the latter conclusion, the court also concluded that because the private system adequately and fully served the plaintiffs' properties, the assessments levied by the defendants fairly measure the damages sustained by each plaintiff and therefore the assessment should be waived in total as to each plaintiff to meet
On this appeal the defendants vigorously attack a number of findings of fact by the trial court. It is noteworthy that the principal witnesses for both parties were men who had been associated with the defendant city of Stamford in connection with the public sewerage project. The plaintiffs relied on the testimony of William Sabia, city engineer, and George Connors, administrative officer of the city sewer commission. The defendants relied on Lawrence Lane, president of the engineering firm that had designed the new system. The plaintiffs called no outside expert witnesses of their own.
The findings of fact that are crucial to the trial court's determination that the plaintiffs had been improperly assessed were that the plaintiffs' pre-existing private sewerage system was adequate and could have been incorporated into the new system as had been done with neighboring systems in the past. Although there was testimony by Sabia and by Lane that the old system was functional, and that some parts of it had been incorporated by way of lateral connections, there was also uncontradicted testimony as noted in the defendants' draft findings that the system was nearing the end of its predicted life span and was in violation of state-determined standards of pollution control. As long ago as Sargent & Co. v. New Haven, 62 Conn. 510, 512-15, 26 A. 1057 (1893), this court held that a polluting sewerage system is not adequate or proper. See also
The trial court was therefore in error in finding that the plaintiffs' pre-existing system was so adequate and complete that the new public system conferred no special benefits upon them. Nonetheless, the court also found, in a finding not challenged in this appeal and supported by the testimony of the administrative officer, Connors, that in determining assessments on the properties of the plaintiffs the defendant sewer commission gave no consideration whatsoever to the plaintiffs' private system, even though many of the original lateral connections from the lines of the private system were retained when the new system was installed. In this state of the record, we cannot determine what the proper assessments should be. Cf. Connecticut Ry. & Lighting Co. v. Waterbury, 127 Conn. 617, 620-21, 18 A.2d 700 (1941); Park Ecclesiastical Society v. Hartford, 47 Conn. 89, 91 (1879); Clapp v. Hartford, 35 Conn. 66, 80-81 (1868).
There is error, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.