Kirchner v. City of Pittsfield

• Decision Date: 29 October 1942
• Citation: 44 N.E.2d 634,312 Mass. 342
• Parties: KIRCHNER et al. v. CITY OF PITTSFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 342

44 N.E.2d 634

KIRCHNER et al.

v.CITY OF PITTSFIELD.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 29, 1942.

Action by Joseph W. Kirchner and another against City of Pittsfield to recover the amount of a sewer assessment made in contravention of an easement deed. From an order of the Appellate Division reversing a finding of the trial judge for plaintiffs, plaintiffs appeal.

Order of Appellate Division reversed and judgment entered for plaintiffs on finding of trial judge.Appeal from District Court of Central Berkshire; C. L. Hibbard, judge.

Before FIELD, C. J., and QUA, DOLAN, COX, and RONAN, JJ.

H. W. Kilbourne, of Pittsfield, for plaintiffs.

J. M. Rosenthal, City Sol., of Pittsfield, for defendant.

QUA, Justice.

The plaintiffs seek to recover from the city the sum of $260.70 under the following circumstances. The plaintiffs executed a deed to the city of the right and easement to build and maintain a sewer on the plaintiffs' land known as ‘lot A.’ The deed recited that it was given ‘in consideration of the abatement of all sewer assessments' by the city. This deed had been prepared and submitted to the plaintiffs by ‘an agent’ of the city, and was delivered to and recorded by the city's department of public works. Thereafter the city built the sewer and made sewer assessments in accordance with the statutes and the city ordinance upon two lots of the plaintiffs, ‘lot A’ and the adjoining ‘lot 25,’ but abated the assessment upon lot ‘A’ through which the easement had been granted. Upon receiving a bill for the remaining assessment the plaintiffs insisted that under the terms of the grant the assessment should be abated as to all their land, including ‘lot 25,’ but the city refused to abate as to the lot other than the one through which the easement had been granted, ‘contending that the abatement agreement did not apply to lot 25.’ Some time later the plaintiffs paid the city without written protest the $260.70, which was the amount of the unabated assessment with interest.

The trial judge found, we think warrantably, that the city accepted the deed and acted under it (Bartlett v. Boston, 182 Mass. 460, 462, 65 N.E. 827), and he therefore ruled that the city became bound by the terms of the deed; that the contract contained in the deed was valid; and that it covered the assessments on both lots. He found for the plaintiffs. The Appellate Division found prejudicial error on the ground that the action was in reality an action to recover back a tax and could not be maintained because of the absence of the ‘written protest’ required by G.L.(Ter.Ed.) c. 60, § 98, relative to the recovery back of taxes paid.

If the action must be treated as merely an action to recover back an assessment wrongly levied the plaintiffs cannot recover. The sewer assessment must be deemed a ‘tax’ within the meaning of G.L.(Ter.Ed.) c. 60, § 98. Wheatland v. City of Boston, 202 Mass. 258, 88 N.E. 769, and see G.L. (Ter.Ed.) c. 83, § 28; c. 80, § 4. This is true under the decision in the Wheatland case, even if the assessment is wholly illegal. Under the plain terms of section 98 the absence of a written protest precludes recovery in this case solely on a claim that an improper assessment has been levied and collected.

But this action is not to be treated as an action merely for the recovery back of an assessment paid. It should be treated as an action to recover a sum exacted in violation of an express contract on the same ground on which it was held in Bartlett v. Boston, 182 Mass. 460, 65 N.E. 827, that the plaintiff could recover back an amount equal to an assessment for betterments demanded by and paid to the city in violation of a condition of a deed accepted by it that any assessment would ‘be assumed by the city’ and the grantor ‘saved harmless therefrom.’ It is true that in the case at bar the language of the deed is not exactly the same as that used in the deed in the Bartlett case, but the words in the present deed ‘in consideration of the abatement of all sewer assessments' must be construed to accomplish the object plainly desired by the parties. They could never have intended that the grantors must go through the form of filing a petition for an abatement the outcome of which should be predetermined by contract. Reasonably construed, the deed meant that as the price paid for the easement all of the plaintiffs' land which would be subject to assessment for the sewer should be exempted from that portion of the total burden which otherwise would fall upon that land. In substance the promise of the city in this case is not different from the promise of the city in the Bartlett case that it would assume the assessment and held the grantor harmless therefrom. Such a promise, if fairly made, does not prevent the levy and collection of ratable assessments upon lands of other owners subject thereto, and in the absence of proof it cannot be assumed that the easement acquired was not a fair equivalent for the assessment renounced. Atkinson v. City Council of Newton, 169 Mass. 240, 245-248, 47 N.E. 1029.

It is expressly provided by G.L.(Ter.Ed.) c. 79, § 39, that where land has been taken by eminent domain the body politic or corporate liable for damages may agree to assume betterments which ‘have been or are to be assessed.’ The agreement in the Bartlett case was held binding upon the city, and it was held that an action for breach of contract would lie for the amount of an assessment collected in violation of the agreement, although payment had been made without the ‘written protest’ required for the recovery back of taxes paid where no question of breach of express contract was involved. We do not believe that the court intended to overrule this decision by anything said in Aspinwall v. City of Boston, 191 Mass. 441,...