172 Mass. 28 | Mass. | 1898
As the case was heard upon the petition and answer, all material facts well alleged in the answer, and all material facts well alleged in the petition which are not denied or put in issue by the answer, and are consistent with the record of the respondents, must be taken to be true. This is in accordance with the practice which has been adopted in proceedings
invalid in law for any reason disclosed by the entire record, or by reason of the unconstitutionality of chapter 402, Acts of 1892?” Certiorari undoubtedly is a proper remedy to try the question whether the assessments are invalid for any reason disclosed by the record, or because of the unconstitutionality of the statute. Bowditch v. Boston, 168 Mass. 239. Holt v. Somerville, 127 Mass. 408. Boston v. Boston & Albany Railroad, 170 Mass. 95.
The report recites as follows: “The respondents did not appeal to the discretion of the court, but admitted that the nature and purpose of the sewer, and the manifest injustice and hardship of the assessments, were such that the writ ought to issue if certiorari was the proper remedy and the act was unconstitutional, or the entire record disclosed such error in law as to warrant the issuing of the writ.” The answer of the respondents is not so full and definite as it should have been. It does not contain a statement of the amount of expenses incurred in the construction of the sewer. A schedule of the number of the lots, of the number of feet assessed in each lot, and of the amount of the assessments with reference to each lot, is annexed to the answer. It is impossible to make out from this schedule in what manner the assessments were made. The papers do not disclose whether the expense of constructing the sewer exceeded four dollars for each lineal foot of it or not. In the schedule the amount assessed is sometimes a little more and sometimes a little less than two dollars per lineal foot of the side of the lot assessed nearest to the sewer. The averments of the petition in this respect are as follows: “3. Your petitioner is ignorant as to the-actual cost of said sewer, and as to the details of the expenses incurred for the work so ordered and performed as aforesaid, and has no means of ascertaining the same. But the said city of Boston and its said superintendent of streets claimed and claim and insist that the said expenses amounted to four dollars, or more than four dollars, for each lineal foot of said sewer, and that the said expenses, to the amount of four dollars for each
In view, however, of the argument addressed to us, the want of a sufficiently definite answer is not very material, because it is not contended in argument that the assessments have not been made in literal compliance with the terms of the statute. The hardship of the case appears from the averments of the petition. The petitioner’s land is alleged to be land of little value, which can be made valuable only by filling it and then using it for the erection of buildings. The sewer is a large brick sewer, and is a part of a long main sewer designed principally for draining a considerable territory of valuable land situated at some distance above the land of the petitioner. To assess the cost of such a sewer, or the cost not exceeding four dollars per lineal foot of such a sewer, upon the petitioner’s land according to the proportion of the number of lineal feet of the boundaries of his lots on the strip of land in which the sewer has been laid to the number of lineal feet of the boundaries of all lots on said strip, he contends, is grossly unjust.
One contention is that the statute violates Article X. of the Declaration of Rights. But the present proceedings do not
It is argued that the statute provides for no appeal from the apportionment of the assessable cost of the sewer made by the superintendent of streets. If the superintendent in determining the assessments has committed any error of law, this may be corrected on certiorari, if material.. Bowditch v. Boston, ubi supra. Brown v. Fitchburg, 128 Mass. 282. The petitioner also can apply for an abatement under St. 1896, c. 359, and perhaps under other provisions of statute.
The principal objection to the statute is that it authorizes the cost of a sewer not exceeding four dollars per lineal foot to be assessed upon the owners of abutting land, according to the proportionate length in feet of the boundaries of the different lots of land on the sewer, without regard to the value of the land or to the depth or shape or size of the lots, or the size of the sewer as adapted to the drainage of the lots; that the statute is arbitrary and absolute, and excludes everything in the nature of an adjudication with reference to each lot affected by the construction of the sewer. It is not contended that the present sewer cannot be used to drain the petitioner’s lots, but it is contended that the land is not worth the expense of draining it until it has been filled, and that the sewer is larger and more costly than is necessary for that purpose, and that the mode of assessment in its application to lots of different shapes and sizes and to lands of different values is disproportionate and unjust.
Different methods of making assessments for the construction of sewers or drains have been sustained by the courts. Springfield v. Gay, 12 Allen, 612. Butler v. Worcester, 112 Mass. 541.
The weight of authority is that an assessment according to the frontage of lots abutting upon a street or public way in a city sometimes may be a reasonable mode of making an assessment for the cost of constructing a sewer in such street or way because of the similarity of the lots, but that such an assessment when
In the present case the order of the board of aldermen of July 11, 1892, directed the superintendent of streets to “ make a sewer in a certain unaccepted street called Railroad Street, and in private land . . . located as shown on a plan on file in the office of the superintendent of streets marked ‘ Roslindale Main Sewer,’ and dated July, 1892.” The land to be taken is described in Exhibits D and F, annexed to the respondent’s answer, wherein it appears that on July 11, 1892, the board of aldermen “Resolved, that it is necessary for the public convenience that a main drain or common sewer should be laid in and through a certain unaccepted street called Railroad Street, in Ward 23, and in and through certain private lands,” etc., and they proceeded to take for that purpose a strip of land eight feet wide in a certain unaccepted street called Railroad Street, of which the supposed owners of the fee were William S. Mitchell, Otis S. Weed, Jr., Lewis F. Rogers, and Charles A. Morss. The description of the so called Railroad Street in the petition is as follows: “Said parcel marked and called 6Railroad Street,’ and all the other lots above mentioned, consist of low, wet meadow land, unfit for dwelling-houses, and of little or no value for agriculture or pasturage purposes, and not capable of being utilized for any purpose of business or profit, either by erecting buildings thereon or otherwise, without great outlay and expense, especially for filling.”
The petitioner, among other things, contends that, “ If said act be held to be valid, then the said assessment is void, so far as the same affects said lots of your petitioner, for the reason that none thereof is subject to assessment on account of said sewer under said act, the said lots 1, 2,16, 17, 18, 19, 20, 21, 22, and 23, and said triangular lot, not abutting on any highway" or strip of land within which said sewer is made within the plain meaning and intent of said act.” We understand the petitioner "to aver that he is the owner in fee of the whole of the parcel called Railroad Street. The meaning of the averments of the petition, as we understand them, when taken in connection with the record, is