353 Mass. 452 | Mass. | 1968
This is an appeal from an order of the Superior Court dismissing a petition for a writ of certiorari to quash the assessments made by the respondent board of sewer commissioners of Hingham against the petitioners’ estates for a proportional part of the cost of a new sewer system in the town of Hingham. The petitioners are the owners of twenty-nine parcels of real estate in the Crow Point section of Hingham.
The case was tried on an “Agreed Statement of Facts,” and the exhibits are before us. We state the agreed facts as summarized by the trial judge in his memorandum and
The judge stated that the “Substitution of the newly constructed mains, sewers and pumping stations . . . for the old outflow sewer, (1) eliminated that part of the 1900 sewer system which had fallen into disrepair, (2) eliminated the health menace caused by the presence of raw sewage in Hingham Bay, around Crow Point and in Hingham Harbor, due to the design and operation of the 1900 sewer system, and (3) provided the 1900 sewer system with up-to-date means and methods for discharge of sewage collected in it.” He concluded that the foregoing constituted a special benefit to the petitioners which justifies the assessments in question. The main thrust of the petitioners’ appeal appears to be directed at this last conclusion.
The petitioners argue that they have paid for the 1900 sewer system which has not been replaced; that the new sewer system is primarily for the benefit of other sections which had no preexisting sewer system; and that the mere provision of a new outlet for their preexisting sewer system does not rise to the level of a special benefit to them. They cite Ayer v. Mayor & Aldermen of Somerville, 143 Mass. 585, in support of this proposition. In that case, this court refused relief to a landowner abutting a new sewer system who complained that he was unfairly assessed for its cost when abutters on another system, which drained through the one on which he abutted, were not so assessed. However, we stated that “in some cases, it might be just and reasonable to require owners of lands upon an upper or tributary sewer to contribute something towards the cost of making and maintaining a lower sewer, used as a means of discharge for the upper one,” although we declined to .make any general rule to that effect, supra, at 587. Equally undispositive is Sears v, Street Commrs. of Boston, 173 Mass.
The petitioners’ position is that the only benefit conferred on them by the new sewer system is the abatement of pollution in Hingham Harbor. They maintain that this benefits them less than the rest of the residents of Hingham,. since the petitioners’ lands front on Hingham Bay which the tidal currents keep free of pollution from the discharge pipe of the 1900 sewer system. At most they are benefited equally with all other residents of Hingham. The continued existence and functioning of the 1900 system, it is contended, rebuts any other special benefit to them from the new construction.
Whether the pollution adversely affects the petitioners’ frontage on Hingham Bay is not the controlling factor. It is not contested that the pollution problem existed, and that the further discharge of raw sewage into Hingham Bay from the 1900 sewer system could not be tolerated. It follows that prior to the new construction the 1900 sewer system on which the petitioners’ estates abut was not functioning properly, in that it had no usable outlet. The respondent could have chosen to repair and extend the old discharge pipe into the bay. This might also have required other efforts to prevent the continued discharge of raw sewage. Such a project, exclusively for the benefit of the users of the 1900 system, could undeniably have been assessed to the petitioners and to their fellow abutters. That the respondent chose to solve this problem by tying the 1900 system into a new and general plan for the disposal of sewage through the Metropolitan District System does not diminish the special benefit to the petitioners.
The petitioners also argue that general town revenues and Federal grants used for the North Sewer District project should have been allocated to cover that portion of the construction from which they derive benefit, with the remainder assessed against only those estates abutting on new sewer laterals. It having been determined that the petitioners derive special benefits from the incorporation of the 1900 sewer system into the North Sewer District, they are hable to assessment for a proportional share of the general cost. There is nothing to compel the respondent to allocate funds so as to put the general burden exclusively on abutters other than on the petitioners. In view of the difficulty of attempting to estimate benefits to the estates individually, it is necessary only that the principle by which the expenditures are apportioned provide for reasonable and proportional assessments, not substantially in excess of the benefits received. There is nothing to show that the assessments have not been made in conformity with these requirements.
There was no error in refusing to quash the assessments.
Order affirmed.