(dissenting). The defendant city took the whole of a piece of land belonging to the plaintiffs as tenants in common for a public street. One of the plaintiffs owned a piece of land in severalty on one side of the piece so taken, and the other plaintiff owned land in severalty on the other side. No part of the several property of either was taken.
The charter of the city, under which the proceedings were had, provides as follows: “ Said board of compensation * * shall * * * appraise all damages to owners of land or buildings taken for public use in pursuance of the provisions of this act, and assess all benefits to persons whose property is especially benefited by the work or improvement for which said land or buildings are taken.” Special Laws of 1879, p. 821, sec 48. That requires that all the damages shall be appraised without reference to benefits, and that all the benefits shall be assessed without reference to the damages. This is apparent from the next sentence, which is as follows:—“Said board shall also * * * assess upon and against all persons whose property is or *126will be specially benefited by any of the public works, improvements, or proceedings mentioned in sections 46 and 47 of this act, their just and reasonable share of that portion of the probable or actual expense of such work, proceeding or improvement, which the court of common council shall determine and order to be paid by the persons whose property is or will be benefited as aforesaid, and assess upon and against each particular one of said persons the Sum which such person shall pay towards such expense,” etc.
Section 49 is as follows:—“ If an appraisal of damages shall be made in favor of any person, and no assessment shall be made against him for benefits, the amount of said appraisal of damages shall be deemed to be his compensation, and shall be paid to him by said city. If such an appraisal of damages shall be made in favor of any person, and an assessment of benefits shall also be made against the same person, the difference between such appraisal of damages and assessment of benefits shall be paid by him to said city, or by said city to him, as the case may be, and he shall be deemed to have received just compensation for all his damages. If such an assessment of benefits shall be made against any person, and no such appraisal of damages shall be made in his favor, he shall pay the amount of such assessment to the city. If the appraisal of damages made in favor of any person, and the assessment of benefits made against such person shall be equal, he shall be deemed to have received just compensation for all his damages.”
Thus it is perfectly clear that the charter requires the appraisal of-damages and the assessment of benefits to be kept distinct. The reason is obvious. In Trinity College v. City of Hartford, 32 Conn., 452, it was held that in each case the benefits might be deducted from the damages, and the balance only appraised as the damages. The result of that rule is, that each land owner to whom damages are appraised pays the benefits accruing to him in full; at least to the extent of the damages; while those benefited who sustain no damage as a rule are required to pay only a percentage of the benefits. Thus those benefited are unequally taxed. *127I cannot doubt that it was the design of the charter of Meriden to prevent that inequality. Hence it requires that the gross benefits shall be ascertained, and also the whole amount of damages ; and that the damages shall be assessed proportionally upon those specially benefited.
If these plain directions had been followed these plaintiffs would have been required to pay no more than their fair proportion of the benefits. Instead of taking the charter as the law of the case, the board of compensation, and oil the appeal the committee, took the decision in Trinity College v. City of Hartford. The consequence is that these plaintiffs are each required to pay all the benefits accruing, while others may be and probably are required to pay only a part of the benefits.
But it is enough that the requirements of the charter were not complied with. It seems to me that there was clearly error in the judgment below, and the injustice done by it may be very great.