136 Mass. 556 | Mass. | 1884
On May 24, 1881, when the betterment in controversy was assessed, the city of Somerville was under no statutory liability for the land, the cost of which it included in its assessment. The land had been taken, and there had been an adjudication of no damages more than a year before, (May 12, 1880,) and no application had been made to the Superior Court. St. 1871, c. 882, § 7. It is true that, before the year had elapsed, the owners of the land referred to had presented a petition for damages to the mayor and aldermen; but this petition could not have been made the foundation of an appeal to a jury, and therefore did not of itself prolong the landowners’ rights. The respondent admits that the jurisdiction of the city council as a tribunal was exhausted by the original adjudication. Cambridge v. County Commissioners, 117 Mass. 79.
The respondent contends, however, that it was still in the power of the city council to bind the city by a compromise;
Assuming that the city council had the power supposed, we do not think that the argument for the city is sustained by the facts. There are several answers to it. In the first place, the exceptions do not disclose a compromise. They show that the landowners had allowed their legal rights to be extinguished by lapse of time, (May 12, 1881,) when they had nothing but an understanding with a committee not authorized to bind the city. So far as the subsequent vote of the mayor and aider-men and common council bore on the damages caused by the taking, there is not the slightest reason to suppose that it was passed, or that any contract purported to be made, in consideration of the abandonment by the landowners of an obviously unfounded claim.
Again, construing the vote in the light of what was done under it, if the sum voted, or any part of it, was to be paid in respect of damages caused by the taking, and if such indeterminable part was not a pure gift or gratuity, that as well as the rest of the sum was to be paid upon a new consideration, the conveyance of the fee by the landowners. Any obligation founded upon that consideration could not be charged to the cost of the taking, or assessed for in the assessment of betterments.
Exceptions overruled.