Sullivan v. Mandell

• Decision Date: 25 May 1912
• Parties: SULLIVAN v. MANDELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 174
98 N.E. 690

SULLIVAN
v.
MANDELL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1912.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Action by William H. Sullivan against Mary L. Mandell and others to recover damages for breach of warranty in the deed of a parcel of registered land sold by defendants to plaintiff under a deed dated and delivered March 20, 1909; the breach of covenant relied on being an alleged sewer assessment, levied by the vote of the board of street commissioners of Boston, dated December 8, 1908. There was evidence that John J. Leahy, superintendent of sewers, was the officer designated by the mayor, under St. 1903, c. 268, § 2, to construct sewers, and that after filing the notice of intention to construct he constructed a house sewer in Morton street, a public street in Boston, in front of the land sold by defendants to plaintiff. The work was completed January 31, 1907, and on December 8, 1908, the superintendent of streets certified the cost of the sewer to the board of street commissioners, which board on the same day passed an order assessing a portion of the cost of the sewer on the land which had been sold by the defendants to plaintiff. It was admitted that there was no order of the board of street commissioners ordering the construction of the sewer, or any order by the board in connection therewith, prior to the order levying the assessment. The court refused to make rulings in favor of defendant and order judgment for plaintiff, from which plaintiff brings exceptions. Exceptions sustained, and judgment entered for defendants.

[212 Mass. 175]

[98 N.E. 691]

C. W. Rowley, for plaintiff.

S. M. Child and H. D. Moore, for defendants.

BRALEY, J.

By St. of 1841, c. 115, the mayor and aldermen of the city of Boston were empowered, upon acceptance of the act, to lay, make and repair as public necessity and convenience might demand all main drains or common sewers within the municipality, which upon construction ‘shall be taken and deemed to [212 Mass. 176]be the property of the city.’ The statute having been accepted, the board whenever it adjudicated that a sewer was necessary could apportion and assess the cost of construction upon the proprietor of a particular drain which entered into the sewer either ‘for the draining of his cellar or land or in obedience to the * * * ordinances of * * * the city, or who by any more remote means shall receive any benefit for draining his cellar or land,’ and the assessment constituted a lien upon the estate for one year after it was laid. St. 1841, c. 115, §§ 2, 3; Childs v. Boston, 4 Allen, 41, 48, 81 Am. Dec. 680. In the expansion and development of the city additional authority was required, and by the St. of 1857, c. 225, the board of aldermen were authorized to construct sewers through the land of any persons or corporations ‘as they shall adjudge to be necessary for the public convenience or for the public health,’ and damages were to be assessed and recovered in the manner prescribed where land was taken ‘for a public way or street.’ A further enlargement appears in the St. of 1873, c. 205, § 1, which provided, that ‘the board of aldermen of the city of Boston may for the purposes of sewerage and drainage take and divert the water of any streams of water courses within the limits of said city and devote the same to the purposes aforesaid, and may take all necessary...