209 Mass. 329 | Mass. | 1911
This is' a suit in equity
The general validity of the assessment levied for the construction of Columbia Road was sustained in Morse v. Street Commissioners, 197 Mass. 292. It is the contention of the plaintiffs that the levying of such an assessment is in violation of the clause above quoted in their deed to the defendant. Their bill is framed on the theory that the defendant can be compelled by a proceeding in equity to comply with the terms of this deed and assume the payment of the betterments thus assessed. We assume in
The present assessment is not within the terms of the deed of the plaintiffs. The words of this deed related to a particular assessment, namely, that arising from the laying out of the park. That was a definite act executed by a certain public board. In no proper sense can it be said that this specific proceeding had any connection, even remote, with the construction of Columbia Road. The fact that the park commissioners at that time had thought about the connection of the land conveyed by the deed in which the covenant occurs with other public parks by parkways imposed no binding obligation upon them, and conferred no legal rights upon the plaintiffs. It existed only as a project, which might be modified in the light of exigencies of administration or of increased knowledge or of a more comprehensive scheme for municipal development. It might have been wholly abandoned without incurring any liability. It is not mentioned in the deed, and the plaintiffs could have maintained no bill for the specific performance of such a plan, which of necessity must depend for its execution upon financial and administrative considerations beyond the control of the park commissioners. Nearly six years after the execution of the deed
This deed dealt by its express terms with an existing lien for betterments growing out of an accomplished public improvement, the amount of which alone remained to be determined, and with nothing else. The assessment, which is now complained of, was
Whether the assessment levied exceeds the benefits which accrue to the plaintiffs’ estates by reason óf the layout of Columbia Road is a matter determinable only in appropriate proceedings for abatement.
Bill dismissed.
The bill as amended was filed in the Superior Court on January 30, 1909. The case was reserved by Dana, J., upon the amended bill, the answer, the replication and an agreed statement of facts, for determination by this court.
The taking by the park commissioners for the Strandway was on April 30,1890. The deed was dated August 4,1891. St. 1897, c. 394, was passed and took effect on May 13, 1897.