Downer v. City of Boston , 61 Mass. 277 ( 1851 )

Shaw, C. J.

It appears to us that the order for the recommitment of the report of the referees was founded on a misapprehension. The court of common pleas seem to have supposed that the value of the estate could not be considered in the assessment; an impression probably caused by a misconception of the case of Boston v. Shaw, 1 Met. 130. The award had been already made, and the testimony upon which it was founded was not material; although, in point of fact, there had been no use of the drain by the petitioners. To explain the remark with regard to the misunderstanding of Boston v. Shaw, it is necessary to take into consideration the connection between the decision in that case, and the subsequent provisions of law upon the subject to which both relate. That case was decided in March, 1840, upon the ground, among others, that a portion of the by-law under which assessments were made on the defendant, was unreasonable and void. There was no longer any valid existing city ordinance upon the subject; and at the ensuing session of the legislature, the statute of 1841, c. 115, was enacted—apparently framed to avoid the objections to the old law—'by which general authority was given to cities to construct drains, and assess the charge of their construction upon the persons benefited. And in pursuance of that statute, the city of Boston passed the existing by-law, providing for assessments upon the persons and estates benefited by common sewers, either by entry of their particular drains therein, or by more remote means, according to the value of the lands benefited, independently of any buildings or improvements thereon.

The former ordinance was objected to as unjust and unreasonable, because the assessments under it were unequal in their operation. The owners of lots, which were built upon, were to be assessed in proportion to their value, including the buildings; the owners of vacant lots, in proportion only to the value of the lots, which might soon after be improved. The court said, “ the apportionment should be made upon the value of the land, independently of the buildings.” They also said that “ it must be considered as reasonable, that the charge should fall upon the lots abutting, which would have the privilege of entering particular drains from the respective lots into the main drain.” And where the statute and ordinance subsequently speak of remote benefit, they mean the increased value given to vacant and unimproved lots by this privilege of .letting in drains from them in case buildings should be so erected. An assessment upon the proprietors of land, so situated that it is or may be benefited by the sewer, is just and equal. There is an actual benefit to the land, since its value is increased for sale or improvement; and although it may be vacant territory, upon which the proprietors have not built, yet it is designed for building; and the advantage accruing is a proper ground for assessment, wdiether upon lots occupied by houses, or designed for houses. It is like the case of sidewalks, where an assessment is levied for a common benefit, present or future, existing actually, or in expectation. And the party should be charged, although he never actually uses the drain; perhaps not, indeed, if there be no prospect of the possibility of benefit. These we understand to have been the grounds of the statute and ordinance, and we are unable to see any valid objections to them. We do not understand that the value of the lots was to be excluded ; but that the value of the buildings on them, or of any improvement made by the owner or others was not to be considered.

It is urged, in the present case, that the petitioners could never have occasion to use this drain. But the streets were one hundred and thirty feet from each other; and although it might for the present be convenient to drain from one lot upon the other, yet there was a probability that the time might come when it would be convenient to use the main drain. The lots might be graded, and they would then derive as much advantage as others from the city sewer. The majority of the referees fixed the assessment according to the benefit resulting from the sewer. The other did not dissent from them, but stated what he thought the basis of their apportionment. We think the majority right, and that it was proper to consider the benefit which might result from draining. There is nothing to show that they considered any other benefit, and their course was right and conformable to the statute, which looks not only to a present power of use, but to a benefit from future use. Judgment affirmed.