French v. City of Lowell

117 Mass. 363 | Mass. | 1875

Devens, J.

The benefit which the petitioner was adjudged to have received by the construction of a common sewer by the city of Lowell, was in the advantage it gave him for draining his cellar or land. Gen. Sts. c. 48, § 4. Downer v. Boston, 7 Cush. 277, 281. It was a benefit similar to that enjoyed by all pro prietors whose lands were or might be drained thereby,- and the proportionate share which he paid towards the expense was a share proportioned to the value and extent of his land and the increased facility afforded to it for drainage. The adjudication was only that his estate was included in the class thus benefited and of the amount to be paid on that account by him; no assessment could have been made for other benefits of a peculiar and different character.

When, therefore, a strip of his land was taken for the construction of the sewer, and he was entitled to damages therefor, “ as in the case of the laying out of highways ; ” Gen. Sts. c. 43, § 16 ; St. 1869, c. Ill, § 3 ; there was to be allowed by way of set-off the benefit, if any, to his property derived from such construction, which was of a peculiar description and different from that for which he had been previously assessed.

The release of his land from the servitude to which it had been subject was of this character. By the turning of the watercourse into the new sewer, his land was relieved from the maintenance thereon of an ancient sewer for the drainage and sewerage of adjacent lands.

The ruling of the sheriff not having been in accordance with this view, the acceptance of a verdict based upon it was erroneous. Verdict set aside.