rules of special pleading, nor overturn the judgment by mere verbal criticism. The courts do require, however, reasonable certainty in the statement of the demand, and in this respect, we think, this record is fatally defective. (See Bennett v. R. R. Co., 7 Phila. 11.)

The exceptions are sustained and the judgment reversed.

Court of Quarter Sessions of Luzerne County.

IN RE DELAWARE STREET.

Streets, assessment of damages for opening.

1. Where the law makes it the duty of viewers to endeavor to procure releases from the persons over whose land the road or street is laid, it will be presumed that they performed their duty in this particular until the contrary is shown. It is not essential to state the fact in the report.

2. Under the charter of the city of Wilkes-Barre the rule of assessment for contribution against adjoining property owners upon opening streets is "benefits received." Hence, where the viewers apportioned and assessed the expense upon the properties supposed to be benefitted according to the foot front, without regard to other facts, it was held that the basis of assessment was erroneous, and their report was set aside.

3. The frontage rule of assessment is one which the legislature, and that body alone, may adopt as a substitute for an assessment by a disinterested tribunal. Viewers appointed to ascertain the benefits and apportion the expense according thereto, do not perform their duties under the law by the adoption of this arbitrary rule without regard to other facts.

4. Where the report of viewers (in the city of Wilkes-Barre) is made on a totally erroneous basis, so as to be incapable of modification, it is the duty of the court to set it aside.

5. The rule which excludes the testimony of jurors tending to impeach their verdict has never been applied with the same strictness to the testimony of road and street viewers.

Exceptions to report of viewers.

The opinion of the court was delivered July 27, 1885, by

RICE, P. J.-I. Is it essential that the report of viewers appointed to assess damages upon the opening of a street in the city of Wilkes-Barre should show affirmatively that the viewers endeavored to procure releases from the persons over whose land the street has been laid? In deciding this question it is unnecessary to say whether the act of May 14, 1874, P. L. 164, applies to the view of a city street or not; for, whether it applies or not, the authorities hold that it will be presumed that the viewers per

formed their duty in this particular, and that all things were rightly done unless the contrary is shown. The precise point was before the court in the recent case of Road in South Abington, 2 Com. Pleas Reporter, 71, and it was there held that the fact need not be set forth expressly in the report. (See also McConnell's Mill Road, 8 C. 285; Road in Chartiers, 10 C. 413.)

II. The damages allowed by the viewers to the Lehigh Coal and Navigation Company are $4,648, and the total amount assessed against the other adjoining property owners for benefits is exactly the same. We agree with the counsel for the report in their contention that the mere coincidence of these two amounts is not, in itself, ground for concluding that the amounts assessed for benefits are excessive, or that the assessments were arbitrarily made so as to equal the damages without regard to the actual benefits to be received. The viewers were certainly not bound to assess more for benefits than would be necessary to pay the amount assessed for damages; and if the benefits exceeded the damages the property owner has no cause for complaint if the viewers have cut down his assessment for benefits to a proportionate part of the aggregate damages. The test to be applied to these assessments is that furnished by the act of assembly under which they are made. It provides that the viewers shall regard "the advantages and disadvantages caused to the several properties adjoining said street, lane, or alley, and shall estimate and allow all persons injured thereby such damages as they shall have sustained over and above all advantages, and also make assessments for contribution upon all such properties as shall be benefitted by the opening, etc., of said street, lane, or alley, such sums respectively as they may have been benefited over and above all disadvantages." Section 16 act May 4, 1871, P. L. Assuming, as we have already stated, and as all concede, that the viewers are not required to assess a greater sum for benefits than is required to pay the damages, it follows that the property owner may not only complain of an assessment which, taken by itself, exceeds the benefits received, but may also justly complain if the apportionment of the damages amongst the several property owners benefitted is made on a basis, not authorized by the act of assembly, which results in an imposition upon him of an

544.

undue proportion of the burden. For example, if A's property is benefitted in the sum of one thousand dollars, and B's in the sum of twelve hundred dollars, and the total damages allowed are fourteen hundred, an assessment for contribution of twelve hundred dollars against B, and of two hundred dollars against A, would be grossly unequal and unjust. And if this inequality resulted from the arbitrary adoption by the viewers of the foot front rule, when their authority and duty under the law were to make the assessments for contribution according to benefits received, can there be any doubt that the assessment would be illegal? The principle upon which all local assessments of this nature are rested is benefits received. We do not question the right of the legislature in the exercise of its taxing power, to declare, within reasonble limitations, that the expense of such improvements shall be borne by the adjoining property owners in proportion to their frontage. But the justification for such a method of apportioning the expense rests upon the idea that the properties will be specially benefitted in that proportion. It is a rule which, within reasonable limitations, the legislature, and that body alone, may adopt as a substitute for an assessment by a disinterested tribunal. Viewers appointed to ascertain the benefits and apportion the expense according thereto, do not perform their duties under the law by the adoption of this arbitrary rule without regard to other facts. If the legislature had contemplated an apportionment of the expense according to the frontage rule, a view of the premises would have been unnecessary. Mr. Cooley says: "Although, as has been stated, an assessment by frontage is really based upon the idea that the estates taxed receive a benefit in proportion to frontage, yet, where the legislature have made benefits the rule of assessment, and provided for assessors or commissioners to ascertain and apportion them, it is not arbitrarily to be assumed that the benefits to any particular lot are, in fact, in proportion to its front on the improvement. In such cases the assessors have a duty to perform on inspection and examination of the several estates, and a report by them that they have assessed the expense by the foot front without saying that they find the benefits in that proportion does not affirmatively show a performance of their duty." Cooley on Taxation, 454. The

language quoted from the text is fully sustained by the authori ties cited by the learned author. (See State v. Hudson, 5 Dutch. 104; State v. Bergen, Ib. 266; Clapp v. Hartford, 35 Conn. 66; Warren v. Grand Haven, 30 Mich. 31; Hundley v. Commissioners, 69 Ill. 559; Burroughs on Taxation, 148.)

Upon examination of the draft attached to the report in the present case, it appears that the assessments against the several adjoining properties were made at the rate of one dollar per foot front, and that, too, without regard to location or depth of lot. Nevertheless, inasmuch as the report declares that the assessments were made on the basis of benefits over disadvantages, it is sufficient in form, and the prima facie presumption is, that the viewers concluded that the several properties were benefitted in the proportion stated. We shall not go over the testimony at length, but an examination of the depositions will show two facts to be established with sufficient clearness: First, that the several properties along the line of the street are not benefitted per foot front according to the same ratio; second, that the viewers, instead of estimating the benefits to each adjoining property and apportioning the expense according thereto, arbitrarily adopted and applied the foot front rule without regard to other facts. There would also seem to be some reason for believing that they proceeded upon the theory that the assessments for benefits must equal the damages allowed, so that no expense would come upon the city. One of the viewers says: "It is understood in opening streets that the benefits derived shall always be assessed or equal the damages sustained by parties; that has been the usual rule. * * * There were some damages, but opening it would give them lots on both sides of the street, and if they wanted the street opened from Market street through, it was an advantage to them to sell lots, so we calculated the number of feet in the damages so as to assess them so much per foot. We apportioned these damages over the foot front; that is the rule we adopted. Question. Why did you adopt such a rule? Answer. It is the only one we could be governed by, to assess fronts. Q. To make the advantages balance the damages? A. That rule, I suppose. We were instructed so there would be no expense to the city. All damages should be paid by benefits derived. Q

Whether derived or not. A. Whether derived or not." In view of these facts we have no hesitation in saying that it is the duty of the court to reject the report. It is incapable of modification, for the reason that the view from the beginning was made on a totally erroneous and unauthorized basis. It is said that the report ought not to be set aside for mere mistake of method unless the results are wrong. This we concede. But, as we have already stated, the arbitrary adoption by the viewers of the frontage rule as a substitute for an assessment upon inspection and examination of the premises, resulted in imposing upon the several exceptants an undue proportion of the expense, and this is a matter of which they have a right to complain. As was said by the court in Clapp v. Hartford, supra, so it may be said here with equal pertinency: 'Two different lots, with the same length of front, may differ greatly in value, owing to a difference in location or other causes, and hence be benefitted in different degrees. It is certainly reasonable that the one receiving the greater benefit should pay the greater tax, yet an arbitrary rule like the one contended for, taxes both alike."

III. The rule which excludes the testimony of jurors tending to impeach their verdict has never been applied with the same strictness to the testimony of road and street viewers. On the contrary, many cases can be found in which such testimony has been received to show an error in the basis of assessment. (See In re Barbadoes Street, 8 Phila. 498; Patten v. Susq. R. R. Co., I Pears. Dec. 48; R. R. Co. v. Heister, 8 Barr. 451.)

For the reasons given in the foregoing opinion the report of viewers is set aside.

S. J. Strauss, H. A. Fuller, I. P. Hand, and W. S. McLean, for report.

E. P. & J. V. Darling and George R. Bedford, contra.