way and the abutting owner is not entitled to compensation.996 And the general principle obtains that since the prompt and proper drainage of buildings, house lots and streets, is necessary to the public health and, therefore, a matter of public concern, the authorities may construct public sewers or drains in the streets or highways to accomplish such results and this is a proper and ordinary use for which the owner will not be entitled to remuneration, such a use imposing no additional burden or servitude.997 Assessments for payment of costs. The cost of the construction of sewers in common with other local improvements is usually met by assessments upon benefited or adjoining property although, as already stated in previous sections, 998 since the va 996 Cummins v. City of Seymour, 79 Ind. 491; McMahon v. City of Council Bluffs, 12 Iowa, 268; Wilson v. Duncan, 74 Iowa, 491; Randall v. Christiansen, 76 Iowa, 169; Eagle Tp. Highway Com'rs v. Ely, 54 Mich. 173; White v. Yazoo City, 2. Miss. 357. But a private drain cannot be laid in a street over the fee of others without compensation. Murray v. Gibson, 21 Ill. App. 488; Conrad v. Smith, 32 Mich. 429; Glasby v. Morris, 18 N. J. Eq. (3 C. E. Green) 72; Smith v. Simmons, 103 Pa. 32; Borough of Susquehanna Depot v. Simmons, 112 Pa. 384. But see Wood v. McGrath, 150 Pa. 451, 16 L. R. A. 715. 997 Leeds v. City of Richmond, 102 Ind. 372; City of Boston V. Richardson, 95 Mass. (13 Allen) 146; Lincoln v. Com., 164 Mass. 1; Chelsea Dye-House & Laundry Co. v. Com., 164 Mass. 350; Cabot v. Kingman, 166 Mass. 403, 33 L. R. A. 45; Warren v. City of Grand Haven, 30 Mich. 24; White v. Yazoo City, 27 Miss. 357; Glasby v. Morris, 18 N. J. Eq. (3 C. E. Green) 72; Stoudinger v. City of Newark, 28 N. J. Eq. (1 Stew.) 187, 446; Traphagen v. Jersey City, 29 N. J. Eq. (2 Stew.) 206; Kelsey v. King, 32 Barb. (N. Y.) 410; In re City of Yonkers, 117 N. Y. 564; City of Cincinnati v. Penny, 21 Ohio St. 499; Elster v. City of Springfield, 49 Ohio St. 82; Lockhart v. Craig St. R. Co., 139 Pa. 419. If 998 §§ 337 et seq., supra. Allen v. Woods, 20 Ky. L. R. 59, 45 S. W. 106. "The question of assessment or apportionment cannot be governed by advantage or disadvantage to one person within the district. so, public improvements could rarely be made. The legislature must necessarily look at the district as a whole, and, upon this general view, determine whether such benefits will accrue from the improvement as will authorize its cost to be assessed upon the adjacent property. Such assessments are made upon the assumption that a portion of the community are specially benefited by the improvement and the principle is that the territory is benefited; that it is a common interest and that governed by equitable rules it must equally bear the burdens. Necessarily individual lidity of a local assessment depends upon the reception by the property assessed of a special benefit, the construction of local sewers can only be assessed upon such property.99 The main arteries of a sewer system or the expense connected with general planning and construction must be paid from the general corporate revenues.1000 § 441. The location. In locating sewer, the main purpose of its construction cannot be forgotten and its precise location must be made with reference to this object and, therefore, in such a place as to best effect its purpose and serve the community for whose use it was designed.1001 Municipal authorities in determining the location of a sewer act in a legislative capacity and, unless there appears a manifest abuse of power, courts will not interfere although the selection of a particular location may result in damage to prop cases of hardship will arise but it approaches equality as nearly as practicable. It follows that a lot owner may be compelled to pay his cost of the improvement although in his particular case his property may not be benefited." Hoyt v. City of East Saginaw, 19 Mich. 39; White v. City of Saginaw, 67 Mich. 33, 34 N. W. 255; City of St. Louis v. Schoenemann, 52 Mo. 348; Henderson v. Jersey City, 41 N. J. Law, 489; Appeal of City of Williamsport, 187 Pa. 565, 41 Atl. 476. The cost of reconstructing a sewer cannot be charged upon abutting property owners. 999 Drexel v. Town of Lake, 127 Ill. 54; City of Auburn v. Paul, 84 Me. 212. Where an act authorizing assessments for public sewers requires an acceptance by the city before it shall take effect, this may be done at an adjourned meeting of a city council without previous notice of the business to be transacted at that time. Slocum v. Selectmen of Brookline, 163 Mass. 23, 39 N. E. 351; Patton v. City of Springfield, 99 Mass. 627; Thomas v. Gain, 35 Mich. 155, 24 Am. Rep. 535; Van Wagoner v. City of Paterson, 67 N. J. Law, 455, 51 Atl. 922; Cleveland v. City of Yonkers, 51 Hun, 644, 4 N. Y. Supp. 84; McKee Land & Imp. Co. v. Swikehard, 23 Misc. 21, 51 N. Y. Supp. 399; Village of St. Albans v. Noble, 56 Vt. 525. 1000 Callon v. City of Jacksonville, 147 Ill. 113; Downer v. City of Boston, 61 Mass. (7 Cush.) 277; In re Kingman, 153 Mass. 566, 27 N. E. 778, 12 L. R. A. 417; City of St. Joseph v. Owen, 110 Mo. 445; Heman v. Handlan, 59 Mo. App. 490; Heman v. Allen, 156 Mo. 534; Oil City v. Oil City Boiler Works, 152 Pa. 348. The decision of a city council that an entire sewer with its branches is a main sewer is final and conclusive except in extreme cases. 1001 West Chicago Park Com'rs v. Baldwin, 162 Ill. 87; Lingle v. City of Chicago, 172 Ill. 170; State v. City of St. Louis, 56 Mo. 277. erty 1002 A public corporation in order to provide a proper outlet for its sewerage system may acquire property and expend moneys beyond the geographical limits of its jurisdiction.1003 The fact that portions of a sewerage system pass under private prop erty does not invalidate ordinances establishing such system.1004 1002 Clapp v. City of Spokane, 53 Fed. 515. Where a manifest abuse of the power clearly appears, the action of municipal authorities will be restrained. Kirby v. Citizens' R. Co., 48 Md. 168; Waters v. Village of Bay View, 61 Wis. 642. 1003 Cochran v. Village of Park Ridge, 138 Ill. 295, 27 N. E. 939. "The section of the statute which confers authority on a village to make local improvements by special assessments was no doubt intended to confine the improvement to the territory within the incorporated limits of the village, and under the statute the corporate authorities of the village would have no power to make improvements in territory outside of its incorporated limits. But what is the object and true scope of the improvement under consideration? Is it one within or outside of the incorporated limits of the village? The object was to furnish sewerage for the inhabitants of the village. The improvement was for the benefit of those residing within the incorporated limits of the village and for them alone; but in order to make the sewer a success, in order to make the improvement of any benefit to any person in the village, it must have an outlet. * * In order to carry out the true scope and object of the ordinance providing for the improvement, it became necessary to expend money outside of the incorporated limits of the village; but it does not follow because that is the case, that the assessment Abb. Corp. Vol. II-10. here is made for an improvement outside of the village. The construction of the sewer from the incorporated limits of the village to the Desplaines river is not an improvement in that territory, but is one for the village, rendered a necessity from the geographical condition of the land upon which the village is located. The power to construct a sewer within the incorporated limits of the village would be a useless one unless the sewer could be connected with an outlet and should we hold that the statute prohibited a village or incorporated town from extending a sewer or drain beyond the incorporated limits when it was necessary to do so to obtain an outlet such a construction would defeat the obvious intention of the legis lature in passing the statute." Following Shreve v. Town of Cicero, 129 Ill. 226. Maywood Co. v. Village of Maywood, 140 Ill. 216; City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601; Butler v. Town of Montclair, 67 N. J. Law, 426, 51 Atl. 494; Munn v. City of Pittsburgh, 40 Pa. 364. 1004 Burhans v. Village of Norwood Park, 138 Ill. 147, 27 N. E. 1088. "It is contended that the ordinance under which the system of sewers is constructed is void because it fails to provide an outlet. The record does not sustain this contention. James C. Elston testified: 'I am a civil engineer and acquainted and familiar with this The ordinances or orders providing for or directing the construction of a sewer should be unambiguous and definite in their terms fixing the location.1005 § 442. Construction. In a preceding section the necessity has been emphasized of a strict compliance with the terms of legislative authority in respect to the exercise of all powers granted to public corporations. In the construction of sewers will be found no exception to this rule. The terms of the law, whether special or general, authorizing a particular improvement or series of improvements, must be strictly followed in ali respects, 1006 and especially in conneetion with the mechanical construction. The manner1007 and size, or form,1008 the materials of which constructed,1009 and the time neighborhood. I designed the sew- 26 Mass. (9 Pick.) 146; Hildreth ers for about sixty acres. The sysv. City of Lowell, 77 Mass. (11 tem, when properly extended, is Gray) 345; Bennett v. City of New adequate for house drainage and Bedford, 110 Mass. 433; Carr v. territory drainage-ample. * * Dooley, 122 Mass. 255; Sheehan v. I have provided an outlet to the City of Fitchburg, 131 Mass. 523; north branch of the Chicago River, Inhabitants of Wellesley v. Washthree quarters of a mile; a good burn, 156 Mass. 359. See, also, § ditch with a fall of twenty-two feet 537, post. in three fourths of a mile.' * * * * It is true that appellants witness 1005 Bickerdike v. City of Chicago, 185 Ill. 280; Com. v. Abbott, 160 Mass. 282, citing Townsend v. Hoyle, 20 Conn. 1. 1006 Heman v. Payne, 27 Mo. App. 481; Bayha v. Taylor, 36 Mo. App. 427; Eyerman v. Blaksley, 78 Mo. 145; City of Kansas v. Swope, 79 Mo. 446. These Missouri cases construe that provision of the charter of the City of St. Louis which provides that every district sewer shall "connect with a public sewer some natural course of drainage." Traphagen v. Jersey City, 29 N. J. Eq. (2 Stew.) 206. or 1007 In re Protestant Episcopal Public School, 46 N. Y. 178. Jones v. Inhabitants of Andover, mond, 67 Fed. 380. 1009 Smythe v. City of Chicago, 197 Ill. 311; City of St. Joseph v. Wilshire, 47 Mo. App. 125. The power to determine the materials used in the construction of a sewer City of HamBut the failure is legislative in its character and cannot be delegated by the city council to a subordinate public offi cial. and mode of construction1010 if prescribed by law, must be in the way provided. In these respects legislation differs widely in the different states. Where the power to construct sewers and drains is granted in common with the exercise of similar power for the construction of other local improvements, the public authorities are vested with discretionary and legislative powers in this respect, and their action, except in case of fraud or where there has been a gross abuse of such authority, will not be interfered to enter in an ordinance the size of a sewer as required by Ind. acts 1889, § 2, does not necessarily deprive the city council of all jurisdiction to order the improvement. City of Kansas v. Richards, 34 Mo. App. 521. Under a general grant of power for the establishment of a general sewerage system with sewer districts, the size, capacity, length and direction of the sewers are within the discretion of the common council. The court in this particular case held that the construction of a district sewer much larger than necessary to accommodate the drainage of a district was not an abuse of such discretionary power. when he reached it in the work of actual construction. There was nothing hidden or concealed, no latent defect that had to be discovered by actual experiment. It was open and visible and appeared on the face of the plans as well as in the lay of the land. To allow the contractor to allege this as a defect in the plans, and to found liability thereon on the part of the city, is letting him out of a contract deliberately made and imposing a burden on the other party because he is let out. The city guaranties the plans as against any damage or loss that may come to the contractor through any latent defect therein, but when the alleged defect is as well known to the contractor as to the city, and the contractor voluntarily and deliberately enters into a contract to do It was to be laid on Oregon and the work in the way and manner South Water streets. These streets prescribed, he assumes all risks of run so as to form an angle of forty damages or loss resulting therefive degrees at the point of inter- from. But it appears that the consection, so that at that point there tractor did not attempt to construct was a curve in the sewer to corre- tne sewer, at this point, of wood. spond with that angle. This curve After it was demonstrated that it is shown on the plans and was per- was impracticable to build it of fectly evident to anyone knowing wood, the board, as they had a the location of the streets. The right to do, ordered it built with impracticability of making a turn an eight-inch brick wall; and it is at that point with a wooden sewer because this wall had no foundawas as evident to the contractor at tion and collapsed that the contracthe time he made the contract as tor makes complaint. 1010 Burnham v. City of Milwaukee, 100 Wis. 8, 75 N. W. 1014. "The sewer in question was what is known as a 'barrel sewer.' * * |