139 Mass. 384 | Mass. | 1885
This is a writ of entry in which the demandant seeks to recover certain premises, which were sold by the collector of taxes of Leominster for the non-payment of an assessment laid thereon by the selectmen of Leominster for the construction of a sewer. The demandant’s title depends upon the validity of this assessment, and of the proceedings had to enforce the same.
While no particular form of words is made necessary by the statute to be used by the authorities in laying out a sewer, yet
There can be no question that the record accurately states the action of the selectmen at their meeting on July 29,1880; and, had it been actually made on the date which it bears, it would have constituted a sufficient laying out of the sewer in question. It was in fact recorded at a subsequent date by the authority of the selectmen who had passed it, who still continued in office and had the custody of the records, although some seven months had elapsed. An accident, such as occurred by the failure to record the vote at the time, should not deprive the town of its rights, when the means existed of correcting it, and were within the reach of the tribunal whose proceedings were defectively recorded. The authority to keep a record carries with it the right to amend it; otherwise, the rule which excludes evidence to control a record would often work great injustice. It has therefore been often exercised after a great lapse of time. Batty v. Fitch, 11 Gray, 184. Winchester v. Thayer, 129 Mass. 129. Halleck v. Boylston, 117 Mass. 469.
Nor could the rights of the landowner have been in any way prejudiced, so far as the assessment made upon him was concerned. AH his right to contest this assessment was preserved, if he were dissatisfied therewith. He was entitled to appeal to a jury for a revision of the assessment within three months after receiving notice of it, and such notice was not given until a long time after the actual laying out. Pub. Sts. c. 50, § 6.
Whether, if the landowner had desired to apply for damages, as such application must be made within one year after the laying out of the sewer, it could be held, as against him, that the year began to run before the actual recording of the vote, need not now be considered. Pub. Sts. c. 50, § 3; c. 49, §§ 33, 105.
Nor do we think the variation of two inches in diameter between the size of the sewer as constructed, and that referred to in the vote laying out the sewer, by reference to the plan
But if the vote of July 29,1880, be held defective, either from failure then to record the same, or for any other reason, the laying out of February 21, 1881, actually established it. On that day, which was the day when the record was actually made, and undoubtedly with the view, should their former proceedings prove defective, of thus remedying the defect, the selectmen passed a vote, which was recorded, laying it out as it was then actually constructed. While, ordinarily, a laying out should be made before any work is done, and sometimes necessarily so, where incidental injury is liable to be done to abutting estates, for the protection of the selectmen or their servants, yet, if a sewer be actually constructed and completed without a formal previous order, there is no reason why it may not then be formally laid out, and appropriate proceedings be had thereafter in regard to assessments upon those who receive benefit therefrom, or to •damages to those whose estates are injured thereby. These may often be ascertained at that time most conveniently and accurately; and no previous notice to parties in interest is required in order to lay out a sewer. Allen v. Charlestown, 111 Mass. 123.
Assuming that there was a valid laying out of the sewer, we must consider whether there was a valid assessment upon the tenant, as the owner of an estate abutting on the street through which it passed. The town had not, when the sewer was laid out, whether by the earlier or later order, or when it was built, adopted any system of sewerage, although it was then authorized to do so. Sts. 1878, e. 232, § 3; 1879, c. 55. Pub. Sts. e. 50, § 7. Before any assessment was laid, it did adopt such a system under the existing statute, which provided that assessments might be made upon the owners of estates, within the territory for which the system was adopted, by a fixed uniform rate, based upon the estimated average cost of all the sewers therein, according to the frontage of such estates on any street or way where a sewer is constructed. The sum assessed to those whose estates abutted on this sewer was more than the cost of this particular sewer, and the assessment was made under the system thus adopted. It was not for a proportional part of the sewer which had been constructed, but according to the uniform rate which
It is suggested that the Pub. Sts. e. 50, § 7, which accurately restate the Sts. of 1878, e. 232, § 3, and 1879, e. 55, apply only to those persons described in the Pub. Sts. c. 50, § 4, who enter their drains into the sewer, or who, by more remote means, receive benefit thereby. But the meaning is that assessments, such as are made under § 4, shall be made upon the owners of estates within the sewerage territory according to fixed uniform rates as are therein provided for. The last clause of § 7, which provides that no assessment shall be made where, “ by reason of its grade level, or for any other cause,” it is impossible to drain an estate into the sewer, sufficiently shows that, in all other cases, the assessment is to be laid.
It is further contended by the tenant, that, even if the system of sewerage might be adopted by the town subsequently to the laying out of this sewer, and an assessment made thereunder for its cost, this assessment does not appear to have been laid in accordance with this system. In form, the order states that the assessment is laid upon the abutters “ as their proportional part of the charges of making and repairing the main drain and
The tenant further contends, that the warrant to the collector, by virtue of which he sold this estate, was informal and illegal, and did not authorize him to sell the estate. The form of warrant is certainly not to be commended. It would be difficult to imagine one more brief and laconic. The Pub. Sts. c. 50, § 5, prescribe that the sale of an estate shall “ be conducted in like manner as sales for the, payment of taxes.” The warrant should properly state what the collector is to do, and the preliminary steps to be taken by him in the collection, of the assessment. Pub. Sts. c. 11, § 63. The assessment was made by the selectmen on July 19,1881; and the warrant, issued and signed by the selectmen, referring to a copy of it, simply directs the collector to collect it “ according to law.” But while the warrant is thus brief, every preliminary step, as well as the sale itself, was made in conformity with that which was the legal power and duty of the collector. The tenant does not suggest a failure in any respect. The warrant which the collector had, although so informal that he might perhaps have been fully excused in refusing to execute it, was still an authority, proceeding from those entitled to issue it, to collect the tax. Its defects were those of omission. In King v. Whitcomb, 1 Met. 328, it was held that the omission fully to comply with the requirements of the Rev. Sts.
Judgment for the demandant.
