121 Mass. 382 | Mass. | 1876
The proceedings, of which these petitioners complain, related to the laying out and grading of three distinct streets in the city of Springfield. If we assume, as contended by the respondents, that these proceedings were all under the St. of 1871, c. 382, familiarly known as the betterment law, an assessment might properly have been made, upon the estate of each of the petitioners, for the laying out or grading of the respective streets to which they relate; and the petitions all present the inquiry at what time such an assessment may be imposed — whether, as contended by the respondents, it may be imposed at any time within two years after the work of laying out, or work of laying out or grading, is completed, even if more than two years have expired since the order for such work was made; or whether it must be imposed within two years after such order.
The St. of 1871, c. 382, § 1, provides that “ at any time within two years, after any street, highway or other way is laid out, altered, widened, graded or discontinued,” an assessment may be made upon real estate which has received “ benefit and advantage therefrom, beyond the general advantages to all real estate in the city or town where the same is situated,” and also that such assessment shall not “ be made until the work of laying out, altering, widening and grading is completed, or discon
The construction contended for by the respondents, that the assessment may be made at any time within two years after the work is completed, without reference to the date when the order was passed, seems to us hardly reasonable, or consistent with the general character of the legislation on this subject. Under such a construction, the work of laying out or grading might be extended through an indefinite period, and the estate still be liable, when it was completed, to assessment. From the time of the passage of an order, such as the statute contemplates, the estate is subjected to an incumbrance, the extent of which is unknown; and it is not difficult to believe, as argued by the petitioners, that from that time, until the assessment is made, such estate can only be sold with difficulty and at great disadvantage, as neither buyer nor seller can accurately estimate the incumbrance which
The St. of 1869, c. 303, provides that the laying out of any highway, &c., shall be void as against any owner of land over which the same may be located, unless possession shall be taken for the purpose of constructing the same within two years. This statute illustrates the use of the words “ laying out,” as we deem the words “ laid out, graded,” &c., to have been used in the St. of 1871, as referring to the order to lay out; and it also indicates the intent of the Legislature that lands shall not be subjected for an unreasonable length of time to the incumbrance imposed by such an order.
The respondents further contend that an assessment for betterments is authorized under the St. of 1871, at any time within two years after the work of grading a street has been completed, even if there has been no special order for such grading, and if the work has been done by the authority of the superintendent of streets, simply in the exercise of his discretion. But such changes of grade as occur by the ordinary repair of highways or streets, under the direction of street superintendents or highway surveyors, are not to be made the subject of an assessment of betterments. In order that there should be an authority to assess betterments, there must be a formal order of the competent authorities entitled to make, not only those changes in grade incidental to repair, but changes so important in their character that they may seriously affect abutters and those whose estates are in the vicinity. Section 5 provides that the owner of any real estate which may abut on any street which may be laid out, graded, &c., may, at any time before the estimate of damages is made, give notice of his objection to assessment, and of his election to surrender his estate to the city or town where it is situated. Here, as in § 1, the words “ laid out ” and “ graded ” must refer to an order to'“lay out,” or to “grade.” Unless such an order were passed, and without the interval of time that would
It is further contended by the respondents, in the cases of Dickinson and of Barton f others, that by filing their several petitions for the abatement of their assessments in the Superior Court, the petitioners have so acquiesced in the legality of such assessments that they should not be permitted now to show, in this proceeding, that they were erroneous. But the petitioners had two grounds of objection to the assessment: that no assessment could properly have been made upon their estates, and also that, if properly assessed, the assessment was too large in amount. Each of these questions they had a right to have tried by the appropriate tribunal, and both could not have been included, in a single proceeding. It might have been that, before there could have been a final adjudication of the validity of any assessment, the time, which was limited to a year, within which they must petition the Superior Court for an abatement, would have expired. They were justified, therefore, in filing such petitions promptly. Because such petitions do not bring into controversy the legality of the assessments, and, for the purpose of a hearing upon them, it is thus impliedly admitted, it should not be held that the petitioners have waived their other and distinct right to have the legality of such assessments passed upon. There has been no loches in filing the petitions now before us, and in presenting the petition for abatement to the Superior Court. The respondents have been subjected to no further expenses than are usually incurred by parties who are summoned to appear in court.
We proceed to apply these considerations to the several petitions before us.
1. In the case of SitchcocJc, Sharon Street was laid out October 21, 1872, by order of the board of aldermen and common council of the city of Springfield, but no change was made in its grade until May 25, 1874, when a sidewalk was, by order of the same authority, established on each side of the street, and subsequently the roadway was raised to correspond with the sidewalks. On December 20, 1875, the assessment for laying out end grading Sharon Street was made. If the grading was there
2. In the ease of Dickinson, Fort Pleasant Avenue was laid out by an order passed December 5, 1871, and an additional order for grading the same street was passed on February 16, 1872. The assessment for betterments on account of such laying out and grading was not made until more than two years after the date of the last order, namely, on October 19, 1874, and was consequently erroneous.
3. In the ease of Barton others, an order was passed, relaying the X road, so called, on June 24,1872. There was no additional order for grading, but the grading was done apparently as a part of the work of adapting the road for travel. The assessment for betterments was not made until more than two years after the order for relaying the road, namely, on October 19, 1874, and was consequently erroneous.
The result is that in each case the
Writ of certiorari must issue.