Crandell v. City of Taunton

110 Mass. 421 | Mass. | 1872

Wells, J.

Petitions for a jury under the “ betterment laws ’ are regulated by reference to the general provisions for the laying out and discontinuance of ways. Gen. Sts. e. 43. Those provisions are to be adapted, so far as they are applicable, to proceedings to revise the assessment of benefits, as well as to those for the estimate of damages. Section 25 provides that “ no petition for a jury shall abate or be defeated by the death of the petitioner.” This is applicable to the present case.

The statute authorizes devisees to prosecute the same petition or present a new one, “ in the same manner and with the same effect as the original party might have done.” The justness of the assessment, when made and as made, having reference to the ownership of the devisor in its entirety, is the matter to be passed upon by the jury. That this may be done “ in the same manner and with the same effect ” as if the original party were prosecuting it, requires that all those who succeed to his interests should join in the same proceedings. Indeed it would be impracticable to proceed otherwise where there is but one assessment upon an entire estate. And it is for the interest of the city that all parties should thus join.

It forms no objection to their joinder that their interests are not joint, but several or diverse. The reduction of the assessment, if they succeed in obtaining it, will leave the reduced amount as a lien upon the entire estate, to be distributed and applied by the same rules precisely as the larger sum would have been. These proceedings have nothing to do with the apportionment of the lien between the different interests of the several devisees, and will not in the least affect it.

But this form of proceeding, by petition for a jury, presents no questions for determination except such as pertain to matters proper for revision by the jury. It is collateral or incidental to the general proceedings for establishing the way, and assumes that such proceedings exist and are valid. If the petitioner desires to vacate the whole proceedings for any supposed invalidity, he must resort to a writ of certiorari. Whiting v. Mayor & Aldermen of Boston, 106 Mass. 89. The case must accordingly

Stand for trial.