City of Lawrence v. Webster

• Decision Date: 24 February 1897
• Citation: 167 Mass. 513,46 N.E. 123
• Parties: CITY OF LAWRENCE v. WEBSTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 513

46 N.E. 123

CITY OF LAWRENCE v. WEBSTER.

Supreme Judicial Court of Massachusetts, Essex.

February 24, 1897

COUNSEL

Chas.

U. Bell, City Sol., for plaintiff.

Sweeney & Dow, for defendant.

OPINION

BARKER, J.

The plaintiff, acting under the provisions of St.1890, c. 59, has filled the defendant's land, assessed upon him a part of the expense of such filling, and seeks in this suit at law under St.1890, c. 59, § 5, to collect the amount so assessed. The defendant contends that the action will not lie, because there was no attempt, before filling the lands, to agree with him as to the manner of filling and the mode of payment therefor; because there was no sufficient notice of the assessment; and because the statement of the assessment sent to him through the mail was not properly served upon him.

1. Before ordering the land to be filled, the city council having voted on September 19, 1890, that the land should be filled in order to abate an existing nuisance, and for the preservation of the public health, ordered that due notice should be given to the owners of the lands, and to all persons interested, that at a place, day, and hour named, the city council intended to order the lands to be filled, and to assess the expense of such filling, or any portion thereof to the owners, in accordance with the provisions of the statute cited, and that all such owners and persons interested would be heard by the city council at that time and place. This notice was duly left by a constable at the defendant's home, and was received by him, and he did not attend, and was not represented at, the meeting, nor did he take any subsequent steps with reference to the matter. We do not decide whether an attempt on the part of the city to agree with the defendant as to the manner of filling the land, and mode of payment therefor, was necessary, under the statute. See Burt v. Brigham, 117 Mass. 307; St.1873, c. 189; Aetna Mills v. Inhabitants of Waltham, 126 Mass. 422, 425; St.1872, c. 299, § 3; Braintree Water-Supply Co. v. Town of Braintree, 146 Mass. 482, 488, 16 N.E. 420; St.1886, c. 269, § 10. If such an attempt was required, we think the holding of the meeting, and the notice that the defendant would there be heard by the city council, was enough. The decision that the lands should be filled under the statute having been arrived at by the vote of September 17, 1890, the order of that date, directing the notice of the meeting of September 29, 1890, did not commit the city to either of the two modes of doing the work provided by the statute, and under the notice all the owners could come in and be heard upon the whole subject. If the owners appeared and said, "We wish to have the work done by contract, and we are ready to contract as to how it shall be done and how we shall pay for it," there was nothing in the action of the city up to that time to prevent the making of such contracts, and there was the opportunity given, at the very earliest point in the proceedings when it could be given, for the owners to express their preference as to how the work should be done. It was, in effect, an offer and an opportunity for the making of an agreement with the owners. As the defendant did not appear, and took no action whatever, the city council had nothing else to do than to proceed in the only way they could proceed in the absence of an agreement, and was justified in taking that course. A majority of the court think that the order passed on September 29, 1890, was passed after it sufficiently appeared that the city was unable to agree with the owners who had received notice and had done nothing.

2. The document sent to the defendant after the making of the assessment was, in the...