Dickinson v. City Council of Worcester

• Decision Date: 27 February 1885
• Citation: 138 Mass. 555
• Parties: William Dickinson v. City Council of Worcester
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

138 Mass. 555

William Dickinson v. City Council of Worcester

Supreme Judicial Court of Massachusetts

February 27, 1885

Argued October 3, 1884. [Syllabus Material] [Syllabus Material] [Syllabus Material]

Worcester.

Petition for a writ of certiorari to quash the proceedings of the city council of Worcester, in assessing upon the petitioner the sum of $ 499.22, as his proportionate share of the expenditures of the city for sidewalks on Belmont Street.

The petition alleged that the petitioner owned an estate abutting on Belmont Street three hundred and fifty feet and six inches; that on November 13, 1883, the city council adopted an order assessing him and his estate the sum above stated, for the alleged expense of constructing a sidewalk; and that the city council had refused to abate the assessment.

The petition averred that the assessment was illegal and void for the following reasons:

"First. Because said assessment wrongfully and illegally includes, and is in part composed of, sums of money expended and purporting to have been expended in making a change and elevation of grade and alteration of said land and street upon which said sidewalk was laid out and constructed, and in filling in with earth, gravel, and other materials upon the location of said sidewalk; and the expense of said change and elevation of grade, and alteration and filling, including the labor done and materials furnished therein, constituted a very considerable sum, and was a considerable part of the expenditures so assessed upon petitioner, and said change of grade, alteration, and filling were substantial and material, and materially damaged petitioner and his said estate, and were unauthorized by law and by the charter and ordinances of said city.

"Second. Because said assessment is in part for the expenditures of said city in making a substantial change of grade and alteration of said street abutting said estates of the petitioner and others, and said assessment is in part for expenditures for work and materials not ordered in said order for the construction of said walk.

"Third. Because a part of said assessment is for grading, and a part thereof for cross walks, and a part thereof for flagstones, and a part thereof for return curbstones, and a part for short corners, and a part for gravel, and a part for filling, and a part for other expenditures of said city; all of which are for other expenses than for paving said sidewalk.

"Fourth. Because said assessment includes expenditures for materials furnished and labor done for supporting said sidewalk as so constructed, and for planking said street and sidewalk on account of said change and elevation of grade, and alteration of said street and walk.

"Fifth. Because said commissioner of highways, before commencing the work of constructing said sidewalk and making said change of grade and alteration, did not make or cause to be made, under the direction of said committee on highways and sidewalks, a full and particular estimate of the expense of said change of grade and alteration, and the plans thereof, nor ascertain either exactly or approximately the damage the abutters thereon, or others, would be justly entitled to claim or demand of said city, in case said alterations should be made and the work thereof done, nor did he report such plans nor an estimate of such cost and damage to the city council, nor did he cause the level of said sidewalk altered to be ascertained with reference to permanent objects in the vicinity, nor was a record or other evidence thereof, or of such proceedings, placed in the custody of the city engineer of said city.

"Sixth. Because said assessment upon petitioner is greater than his just and proportionate part of the expense of paving said sidewalk laid."

The answer set forth an order of the city council on May 22, 1882, laying out the sidewalk, an order to the commissioner of highways, on July 10, 1882, "to set the curbstone to the grade established by the city council, and to pave the gutters, and construct the sidewalk with good hard-burnt paving brick, or other good material, on the north side of Belmont Street from Oak Avenue to the easterly line of the estate of William Dickinson," and an order on November 13, 1882, assessing the expense upon the abutters, including the petitioner.

The answer further averred that Belmont Street had been located and laid out as a county road, and the grade of the street was established and wrought up to grade long before the sidewalk was constructed; that the sidewalk was established and laid out to conform to the level and grade of the street as so laid out and established as a county road; that in order to construct the sidewalk to correspond and conform to the level of the wrought part of said street, it was necessary to use some earth and gravel, and a small portion of the expense of constructing the sidewalk was for the earth and gravel so used, but all the earth and gravel so used was for the proper construction of the sidewalk to conform to the grade of the said street as already laid out and established, and no change of grade of said street was made.

The answer then proceeded as follows: "The respondents deny that the construction of said sidewalk in such a manner as to conform to the grade of the said street was any damage to the petitioner's estate; and they deny that any of the acts done in the construction of said sidewalk were unauthorized by law, and by the charter and ordinances of said city.

"The respondents deny that said assessment is in part for expenditures of said city in making a substantial change of grade and alteration of said street abutting said estates of petitioner and others, and deny that said assessment is in part for expenditures for work and materials not ordered in said order for construction of said sidewalk; but, on the contrary, the respondents say that no change of grade or alteration of said street was made, and said sidewalk was constructed so as to conform in grade to the grade of the street as already established. The respondents deny that a part of said assessment is for grading, except such grading of the said sidewalk as was necessary and proper in order to construct it in conformity with the grade of the street as already existing, and they deny that any portion of said assessment is for cross walks or flagstones, or return curbstones, or for short corners, except within the limits of said sidewalk, and as hereinafter explained, but admit that a part of said assessment is for such necessary earth and gravel as was required properly to construct said sidewalk in conformity respecting grade to the grade of the street as already established, and they aver that all said expenditures were incidental to the proper construction of said sidewalk.

"The respondents deny that said assessment includes expenditures for materials furnished and labor done for supporting said sidewalk as so constructed, and for planking said street and sidewalk on account of any change and elevation of grade and alteration of said street and walk; but the respondents admit that the surface of petitioner's land was at such level with reference to the street that it was necessary, in order to construct said sidewalk in conformity to the grade of the street, to use planking, and a small part of said assessment is for the cost of such planking, and the labor of setting the same.

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