Lorden v. Coffey

• Decision Date: 04 April 1901
• Citation: 60 N.E. 124,178 Mass. 489
• Parties: LORDEN v. COFFEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 489

60 N.E. 124

LORDEN v. COFFEY.

Supreme Judicial Court of Massachusetts, Suffolk.

April 4, 1901

COUNSEL

James D. Thomson, for plaintiff.

Wilfred Bolster, for defendant.

OPINION

HOLMES C.J.

This is an action on the covenant against incumbrances in a deed conveying land on Burbank street in Boston. A few days before the date of the deed the street commissioners had ordered that the socalled street should be laid out as a highway under St. 1891, c. 323, as amended by St. 1892, c. 418. After the date of the deed the street commissioners determined the assessable cost which subsequently the plaintiff paid. It is not denied that the lien for this cost was an incumbrance ( Blackie v. Hudson, 117 Mass. 181) if the statute under which it was assessed is constitutional, and the case comes here on exceptions to a refusal to rule that the act is void. No other question is argued.

By St 1892, c. 418, § 8, the assessable cost of the work is made a line upon the land without personal liability, and the amount for which each parcel shall be liable shall be determined by the street commissioners 'in accordance with the proportions in which said board shall determine that the said parcels of land are increased in value by the aforesaid order and the carrying out thereof.' It is argued that although the cost is to be divided among the estates liable in proportion to the benefit, the cost may be greater than the benefit, and that therefore an attempt to charge it all unconditionally to the benefited estates is void under recent decisions. Dexter v. City of Boston, 176 Mass. 247 251, 57 N.E. 380.

We are of opinion that the argument is sound, and that the statute cannot be sustained. At first we had the impression that the required proportion to the increase in value could be construed to save it, as the word 'proportional' was deemed sufficient to save St. 1899, c. 450, § 3. Hall v. Commissioners (Mass.) 59 N.E. 68. But the statute of 1899 simply fixed a maximum of not more than four dollars per linear foot as the sum which was to be charged in proportion to the benefit received. Under the statute before us the whole assessable cost is to be paid by the adjoining estates. 'The said assessable cost of the work done under said order shall be assessed upon the several parcels of land' (St. 1892, c. 418, § 8), or as it read before amendment, 'The said assessable cost * * * shall be repaid with...