Lincoln v. Dore

• Citation: 176 Mass. 210,57 N.E. 356
• Parties: LINCOLN et al. v. DORE et al., Street Commissioners.
• Decision Date: 13 May 1900
• Court: United States State Supreme Judicial Court of Massachusetts

176 Mass. 210

57 N.E. 356

LINCOLN et al. v. DORE et al., Street Commissioners.

Supreme Judicial Court of Massachusetts, Suffolk.

May 13, 1900

COUNSEL

Henry Winn, for petitioners.

Thomas M. Babson, City Sol., for respondents.

OPINION

HOLMES C.J.

This is a petition for a writ of certiorari to quash an assessment for betterments made under St. 1893, c. 339, and St. 1894, c 439. Under these acts the street commissioners of Boston constructed a portion of Boylston street with sewers, and established building lines outside and parallel to the lines of the highway. They assessed upon the abutters, and no others, so much of the cost of the whole work (subject to the exceptions mentioned in section 2 of the act of 1893) as was equal to what they adjudged to be the total special benefits received; and in estimating the special benefits they took the whole improvement as one, instead of separating the items and setting the cost of the sewer against the benefit of the sewer, the cost of the building lines against the benefit of the building lines, and the cost of the street against the benefit of the street alone. This is one ground upon which the assessment is attacked.

Another ground is that the commissioners confined the assessment to abutters, although the statute of 1893 did not, and that other estates not abutting on the way were benefited specially. In support of this allegation proof was offered at the hearing that the value of estates near the end of Boylston street was increased by having a shorter and more pleasant avenue to important points, and was increased much more than that of more remote estates. The evidence was rejected, the judge ruling that the alleged benefits were not special and peculiar within the meaning of the statute, and also that the omission of estates which ought to have been assessed could not be shown upon certiorari, unless--which did not appear--the omission occurred through a mistake of law, and not through a mistake of fact.

It is objected further that, to make the assessment proportional, a valuation should have been set upon the public benefit, or at least upon the benefit to all Boston real estate, as well as upon the special benefits to individuals, and both should have been assessed equally. The statute itself is attacked as imposing a disproportionate tax.

The first objection goes to the course adopted by the commissioners in considering the benefits from the whole improvement as one. The assessment cannot exceed the special benefit (Norwood v. Baker, 172 U.S. 269, 19 S.Ct 187, 43 L.Ed. 269; Sears v. City of Boston, 173 Mass. 71, 78, 53 N.E. 138, 43 L. R. A. 834), and therefore, in determining what the petitioners can be called on to pay, it may make a great difference if an item which cost but little, but added much to the value of their estate, can be lumped with another of which the cost was large, but the benefit small. Still 'the question was as to the benefit to the petitioner's land by the whole construction of the street.' Alden v. City of Springfield, 121 Mass. 27, 28. The statute seems to contemplate the course which was adopted, so that strictly the question would be perhaps whether the statute could not authorize it. But, if we assume the statute to be neutral, the question is whether it can be said as matter of law that the commissioners were not warranted in finding street, sewer, and building lines all to be portions of one improvement. We are of opinion that they were warranted in their finding. The different elements are combined in the unity of a single, though complex, design. A sewer is one of the recognized incidents of a way, although it serves a different purpose from that of a pavement, just as a chimney is part of a house, although it serves a different end from that of the roof or walls. The right to lay sewers is paid for when a way is laid out, although not specially mentioned in the taking. Lincoln v. Com., 164 Mass. 1, 10, 41 N.E. 112.

Next, as to the refusal to receive evidence that other estates besides those of abutters were benefited by having a shorter and more pleasant way to central points. The statute did not limit the assessment to abutters. It allowed lands specially benefited to be assessed 'whether situated on said street or otherwise.' St. 1893, c. 339, § 2. This being so, the petitioners say that they are entitled to be heard at some time on the question whether others should not have been called on to contribute, and so to lighten the petitioners' burden. We must take this contention with the petitioners' offer of evidence. If any amendment were necessary to give the respondents the advantage of the actual state of facts as shown by that offer, it would be allowed as of course. But the benefits which the petitioners offered to prove were those common to all lands in the vicinity, and these, it is settled, are not to be regarded as special. Parks v. Hampden Co., 120 Mass. 395; Hilbourne v. Suffolk Co., Id. 393, 394; Cross v. Plymouth Co., 125 Mass. 557, 558; Abbott v. Cottage City, 143 Mass. 521, 526, 10 N.E. 325; Smith v. City of Boston, 7 Cush. 254; Stanwood v. City of Malden, 157 Mass. 17, 31 N.E. 702, 16 L. R. A. 591; Dorgan v. City of Boston, 12 Allen, 223, 234; Jones v. City of Boston, 104 Mass. 461, 469; Benton v. Inhabitants of Brookline, 151 Mass. 250, 260, 23 N.E. 846.

All these last-cited cases start from Meacham v. Railroad Co., 4 Cush. 291, 297, 298, and it is said that this distinction between special and general benefits had its beginning in a mere rule of damages for determining the sum to be deducted from the amount to be paid when land was taken for a public improvement. It is argued that constitutional difficulties have no place in a case of that sort, but arise only when the special benefits are made the subject of an assessment. A suggestion that the deduction of benefits may be referred to the rights of eminent domain will be found in Harvard College v. City of Boston, 104 Mass. 470, 490, 491. See Sears v. City of Boston, 173 Mass. 71, 76, 53 N.E. 138, 43 L. R. A. 834. The distinctions of constitutional law must be pretty technical if taking a man's money is unlawful in the latter case and is not equally so in the former. It may be that the line between special and general benefits is fixed by a somewhat rough estimate of differences. But all legal lines are more or less arbitrary as to the precise place of their incidence, although the distinctions of which they are the inevitable outcome are plain and undeniable. This one we regard as sanctioned by legislation and judicial determination.

In what we have said last we have approached the grounds on which the statute is argued to be unconstitutional. The petitioners say that, if there is a benefit to other estates in the neighborhood, or to all the land in Boston, or to the public generally, no matter how you distinguish it from that received by the petitioners' land, they are entitled to have those benefits share proportionately with their own in the expense. They deny that their special benefits can be assessed before calling on the others. Notwithstanding the effort of their counsel in his able and ingenious argument to distinguish the case, we must regard the whole contention as disposed of by Dorgan v. City of Boston, 12 Allen, 223. It...