When the common council of the city of Rochester have determined to cause a public improvement to be made, the expense of which should, in whole or in part, be borne by the persons benefited, they are required to declare whether the whole or what portion of the expense shall be assessed on such owner or occupants, specifying the sums to be assessed, and the portion of the city which they deem will be benefited by such improvement. (Charter of 1861, § 191.)
Section 192 provides, among other things, that the common council, after making the determination aforesaid, make an order directing the assessors to make an assessment, upon all the owners and occupants of lands and houses within the portion or part so designated, of the amount of the expense in proportion as nearly as may be to the. advantage which each shall be deemed to acquire by the making of such improvements.
In the case before us the proceedings preceding the assessments are conceded to be regular. The error relied upon to invalidate the assessment is, that the assessors omitted to assess some 900 feet of land lying within the portion of the city declared by the common council to be benefited by such improvement. The position of the plaintiff’s counsel is, that the determination that a portion of the city is benefited is a determination that every lot of land within such portion is thereby charged with a share of the expense in proportion to the benefit conferred.
On the other side, it is insisted that a determination that a portion of the city is benefited only fixes the limits within which the assessors are to apportion the expense, but it is for the assessor to determine which of the owners within *195such limits are benefited, and if there are any who are not -benefited it is their duty to omit them altogether and assess it on those who are. If the plaintiffs’ construction is right, then each lot within the prescribed boundaries must bear some part of the expense, whether in -the opinion of the assessors they are actually benefited or are not. If the defendant’s construction is the correct one, -then the assessors •are to omit from .the assessment all lots not deemed by them to be benefited. We all know that it is very seldom, if ever, •that a public improvement benefits the property of every owner within the limits within which the great majority of owners are actually and materially benefited. A sewer may be indispensible to the owners of the street in which it is laid, but from the conformation of the ground it may be impossible for one or more owners to drain into it, and they may have perfect drainage in a direction opposite to that of the sewer. Can such owners be said to be benefited by the sewer 2 And if not, upon what principle can they be charged with any portion of the expense of constructing it ?
In a certain sense, all the inhabitants of a city or village -are benefited by every public improvement made within it, and such benefit is usually in proportion to the proximity of the personal property to the improvement and the use he is able to make of it. But the benefit of a sewer in a street to a lot of land that is so far removed from it, or is so situated that it cannot drain into it, is so small as to be incapable of estimation, and is, therefore, not liable to be assessed for the expense.
It would be useless formality to assess upon a lot a mere nominal amount toward the expense of an improvement, and a statute should not be so construed as to require such an assessment, unless its language admits of no other construction.
It was indispensable that provision should be made for determining the limits within which persons should be deemed to be benefited by a public improvment, the whole or any part of the expense of which should be borne by those benefited.
*196Instead of leaving that queston to the assessors, as is sometimes done, the legislature has seen -fit to confer the power on the common council.
■ But the determination that those living within the limits prescribed by the common council is not a determination, nor was it intended to be a determination that every lot of land within such limits was benefited by such improvement.
To give it such an effect would be to declare to be true what every person outside of the common council would not unfrequently know to be false as well as unjust.
For these reasons, I am of the opinion that the determination, that a -specified portion of 'the city is benefited by a public improvement, is not and was not designed to be a determination that each and every lot within such limits is to be deemed benefited by such improvement, but it merely prescribes the boundaries beyond which benefit is not conferred, and within which the assessors must assess the expenses of the improvement upon those whom they deem to be benefited.
The presumption of law is, that the assessors have properly discharged their duty in making the assessment in question, and the omission to assess any portion of the premises within the limits prescribed by the common council is presumed to have been because the persons or lands omitted were not deemed to be benefited by the improvement.
It was incumbent on the plaintiffs to allege in their complaint and to prove on the trial, if the allegation was denied, that the persons or lots omitted were not omitted because they were not benefited. But the complaint contains no such allegation, nor has any such -proof been made. The presumption, of law, that the persons omitted were omitted because they were not benefited, must prevail, and for that reason, if for no other, the plaintiff was properly nonsuited.
It is suggested, in the points of the defendant, that the lands omitted were part of the lands set apart by the State for the use óf the Erie canal, but there is no proof that the lands are the property of the State.
*197The question, therefore, whether the property of the State can be assessed for municipal purposes, does not arise.
By section 199 of the charter of 1861, it is declared that every assessment, when ratified and confirmed by the common council, shall be final and conclusive.
This precludes any examination of the propriety of the assessment by this court or other tribunal, until it is set aside in a proceeding to review it. ■
If it is void for any cause, the confirmation by the common council Cannot make it valid; but, unless it is void, it must be enforced.
The learned counsel, who applied for a reargument, has failed to suggest any satisfactory reason for holding that the provisions of section 208 of the charter, which declares that all assessments, made after the passage of the act of which it forms a part, for local improvements, shall be and are thereby declared to be valid ánd effectual, notwithstanding any irregularity, omission or error in the proceedings relating to the same, does not apply and cure all irregularities and omissions in the assessment under consideration.
This is an assessment for a local public improvement made after the passage of the charter; and it is, therefore, within the very words of the section. If it -does not apply to this assessment, and cure all irregularities, and omissions, and errors in it, then it is senseless and unmeaning.
The counsel for the plaintiff assumed that both the judges who heard the argument on the appeal concurred in the conclusion arrived at by Judge Talcott, that a determination of the common council that a portion of the city was benefited by the improvement, subjected every lot within that portion to assessment. This is a mistake I did not concur in that proposition, but did in regard to the effect of section 208.
The motion for a reargument was denied, with ten dollars costs.