Foley v. City of Haverhill
| Decision Date | 05 May 1887 |
| Citation | 144 Mass. 352,11 N.E. 554 |
| Parties | FOLEY v. CITY OF HAVERHILL. FLYNN v. BOURNEUF and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Two actions heard together,-the first to recover the amount of a betterment tax assessed upon the plaintiff by an order of the board of aldermen of the defendant city; the second an action upon a covenant against incumbrances. Hearing in the superior court, before MASON, J., who reported the case to the supreme judicial court. The facts sufficiently appear in the opinion.J.P. & B.B. Jones, for plaintiff, Foley.
The plaintiff submits that, in 1884, when the order of widening and grading was passed, what was called River street was not a way within the meaning of the statute, and that the board of city officers had not jurisdiction to widen or grade it, nor to assess the betterment in question. The notice given was not the notice required by the statute, and, by failing to give the statutory notice, the board failed to acquire jurisdiction to pass an order, and the same was void. Pub.St. c. 49, § 67; Fitchburg R. Co. v. Fitchburg, 121 Mass. 132. See Dill. Mun. Corp. (3d Ed.) § 606. The orders, then, of 1871 and 1874, were void, by reason of a failure to give the statutory notice. And we respectfully submit that the testimony of Nelson Spofford, which we assume to be true, does not establish that what was called River street prior to 1871 was identical with the so-called River street which the board attempted to widen in 1884.
The fact that the presiding judge did not find the passage-way was identical with the de facto street called River street, and did not rule that it was a way within the meaning of the statute, renders it unnecessary, in this connection, to consider at any length the point that there was no evidence of adverse public use of this passage-way. That statute (1846, c. 204; re-enacted, Pub.St. c. 49, § 94) rendered it impossible to establish it a public way by dedication. Morse v. Stocker, 1 Allen, 150;Flagg v. Flagg, 16 Gray, 175. Therefore we submit that, prior to the order of 1884, River street was not a way within the meaning of the statute. The notice was that the board intended to take and lay out said land as a public way, and that at a certain time they would meet and hear any objections to their intended action, and, by implication, would consider and perhaps sustain them. But chapter 49, § 67, Pub.St., requires that notice should be given of the time and place at which the board intend to lay out the way. Such is the meaning of the section, and such has been the construction put upon it by this court. See Gen.St. c. 43, § 16; Fitchburg R. Co. v. Fitchburg, supra. In the present case the notice should have stated that the mayor and aldermen intended, at the time appointed, to take the land, and lay it out. The board had no jurisdiction to pass said order of taking in 1884, because it had failed to give the statutory notice. We further submit that the board had no jurisdiction to pass the order of assessment. See Pub.St. c. 51, § 1. Now, the statute recognizes a special benefit, and a general benefit, and provides that if, in the opinion of the board, real estate has been specially benefited, the board shall have power to assess upon such estate a sum not exceeding one-half the amount of the special benefit which the board shall have determined and adjudged; and it is to be remembered that the jurisdiction of the board to make the assessment is made by the statute to depend, not upon the fact that the estate has been especially benefited, but upon a determination and adjudication of the board that, in their opinion, the estate had been specially benefited. The records in the present case not only fail to disclose an adjudication of special benefit, but disclose an adjudication of general benefit. It cannot be inferred from the fact of assessment that there was an adjudication of special benefit, for there is no presumption in favor of the legality of the assessment. Lowell v. Wheelock, 11 Cush. 391. Nor can it be said that the remedy for such an assessment is by application for a jury under section 6, c. 51, Pub.St. Under that section the question is whether an assessment lawfully made is excessive in amount; but the question whether the assessment is one which the board had jurisdiction to make “should be tried by certiorari, or by some other proper mode of proceeding.” Simonds v. Turner, 120 Mass. 328;Crandell v. Taunton, 110 Mass. 421.
The remedy by application for a jury provides for the case of a party who deems that a valid assessment is excessive in amount, but does not provide for the case of an assessment which the board had not jurisdiction to make. The statute does not contemplate the revision of the amount of a void assessment. The board of mayor and aldermen, with relation to these proceedings, is a court of limited and inferior jurisdiction. The decree of such a court can be impeached collaterally, for want of jurisdiction. Lowell v. Wheelock, 11 Cush. 391;Piper v. Pearson, 2 Gray, 120;Jenks v. Howland, 3 Gray, 536; Bigelow, Estop. (3d Ed.) 153, and cases cited in note.
The decree may be void because the court had no jurisdiction of the subject-matter. Piper v. Pearson, supra. Or the decree may be void because, having jurisdiction of the subject-matter, it failed to acquire jurisdiction of the parties to be affected by it. Smith v. Rice, 11 Mass. 507;Rossiter v. Peck, 3 Gray, 538;Fitchburg R. Co. v. Fitchburg, 121 Mass. 132;Bloom v. Burdick, 1 Hill, 130. Or the decree may be void because the court, having jurisdiction of the subject-matter and parties, rendered a judgment in excess of its jurisdiction. Folger v. Columbian Ins. Co., 99 Mass. 267.
If this assessment is void, the present action can be maintained to recover back the amount paid by the plaintiff. Pub.St. c. 51, § 2; Id. c. 12, § 84. A party aggrieved by a void assessment may pay it, and maintain an action to recover it back. Bigelow v. Boston, 123 Mass. 50. Or, after sale of his premises under the assessment, may, if in possession, maintain a bill in equity to quiet his title. Davis v. Boston, 129 Mass. 377. The position of this plaintiff who paid her assessment to prevent the sale of her premises must be as good as the position of a person who brings a bill to quiet title after sale. Or the land-owner, under certain equitable limitations, may have the proceedings quashed by writ of certiorari, if the present action is subject to the same limitations as an application for a writ of certiorari, as intimated in Taber v. New Bedford, 135 Mass. 162; yet no equitable defense has been pleaded or suggested in the present case.
The orders of taking and laying out, in 1871, 1874, and 1884, were passed in concurrence by the mayor and aldermen and common council. This, we submit, was not the action of the city council, to whom the power of laying out streets was entrusted by the city charter, § 24. In the present case, the city council (including the mayor and aldermen) should have accepted and allowed the way laid out by the mayor and aldermen.
If, in the opinion of the court, the identity of the narrow passage-way with the land described as taken in 1871 is material to the decision of this case, then a new trial should be ordered, as the court below failed to decide this question.
J.P. & B.B. Jones, for defendants, Bourneuf and others.
This case depends upon precisely the same questions of law as those raised in the preceding case, with this exception: in that, the burden was on the plaintiff to prove that the assessment was an illegal one; in the present case, the burden is on the plaintiff to prove that the assessment is a legal one, and an incumbrance. Lathrop v. Grosvenor, 10 Gray, 52.
John J. Winn, for defendant, City of Haverhill.
There was evidence at the trial that River street was used by the public as a public street or highway since 1857. Any finding of the presiding judge at the trial as to the identity existing between River street, as described by Nelson Spofford, and the River street mentioned in the doings of the city council during the years 1871, 1873, 1874, and 1884, was a finding of fact. There was evidence sufficient to show this identity. Pub.St. c. 51, § 1. Ever since the enactment of chapter 203 of the Acts of 1846, (re-enacted in Gen.St. c. 43, § 82; Pub.St. c. 49, § 94,) a way can be shown by prescriptive use, as it could before that time. Chapter 203 of the Acts of 1846 is limited solely to ways dedicated to the public, and does not apply to prescriptive ways. The law as to prescriptive ways, and as to the proof of their existence, is the same as it was before the passage of chapter 203 of the Acts of 1846. That a highway may be proved by a long and continued use by the public, upon the ground that a conclusive presumption arises from such use that it had been originally laid out and established by competent authority, is settled in this commonwealth. Cases before chapter 203 of 1846; Com. v. Newbury, 2 Pick. 51;Com. v. Low, 3 Pick. 408;Reed v. Northfield, 13 Pick. 94;Stedman v. Southbridge, 17 Pick. 162; Sprague v. Waite, Id. 309; Folger v. Worth, 19 Pick. 108;Com. v. Belding, 13 Metc. 10. Cases after chapter 203 of 1846: Com. v. Coupe, 128 Mass. 63, overruling Williams v. Taunton, 16 Gray, 288. See, also, Jennings v. Tisbury, 5 Gray, 73;Hayden v. Attleborough, 7 Gray, 338. The questions raised by the plaintiff as to the legality of laying out of River street for 1871, 1874, and 1884 are not open in this action. Her remedy should be by petition for a writ of certiorari. These proceedings cannot be impeached collaterally. Gilkey v. Watertown, 141 Mass. 317, 5 N.E.Rep. 152; Taber v. New Bedford, 135 Mass. 162. To permit the plaintiff to maintain this suit would be to declare proceedings invalid in an action at law when this court would refuse to quash them on a petition for a writ of certiorari. Gilkey v. Watertown, supra; Taber v....
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