Blackie v. Hudson

117 Mass. 181 | Mass. | 1875

Colt, J.

The widening of Hanover Street was under the St. of 1866, c. 174, as amended by the St. of 1868, o. 276, which was the betterment law then in force in Boston. This appears from the notice given by the board of aldermen of their intention to widen the same, and to assess a portion of the expense upon the estates benefited, followed by the order for the same and finally by an assessment for betterments. Jones v. Aldermen of Boston, 104 Mass. 461, 464. The notice was served personally upon owners or their tenants, or agents, when any part of the land was taken, and upon all others whose estates were benefited, by publication for two weeks in four daily papers. In the absence of , any statute requirement, or any city ordinance, regulating this, we cannot say that there was not reasonable and sufficient notice given of these proceedings. It does not follow that one whose estate is only assessed for benefit is entitled to the same notice which is given to one whose lands are actually taken under the right of eminent domain. The rights of property in the latter are quite differently affected, and the redress afforded is different from that which applies to the former. These assessments for betterments are modes of taxation adopted for the purpose of subjecting those whose estates are directly benefited to a part of the expense of certain local improvements, and as such are upheld.

• The liability to assessment in this case became an incumbrance upon the granted estate on October 15, 1869, when the order for widening the street was adopted. As was said in Jones v. Alder men of Boston, supra, “ the liability to assessment is not created by the adjudication of the aldermen, but by the fact that benefit is received from the widening, and it accrues at the time of the widening, and is to be estimated as of that date.” It is like the assessment of annual taxes, where although made afterwards, yet the tax when ascertained relates back and takes effect as of the first of May, when the lien attaches. Cochran v. Guild, 106 Mass. 29. Liens of this description are incumbrances within the meaning of the covenants in the defendant’s deed, and he cannot escape his obligations to the plaintiff by the agreed fact of his actual want of knowledge of the widening of the street at the time his deed was made. It may be nevertheless that the granted premises had then received the benefit of the improvement in its enhanced value, and that the defendant if he sold his land at its true value will not suffer a loss.

Judgment for the plaintiff.