Towne v. City Council of City of Newton

• Decision Date: 20 October 1897
• Citation: 47 N.E. 1029,169 Mass. 240
• Parties: TOWNE ATKINSON v. CITY COUNCIL OF CITY OF NEWTON. ATKINSON v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 240

47 N.E. 1029

TOWNE ATKINSON v. CITY COUNCIL OF CITY OF NEWTON. ATKINSON v. SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

October 20, 1897

COUNSEL

James E. Cotter and Richard M. Saltonstall, for petitioners.

Winfield S. Slocum, City Sol., for city of Newton.

OPINION

BARKER, J.

Under the common method in which public ways are laid out, altered widened, or discontinued, the whole amount actually expended in making the improvement is ordinarily borne by the public. There may be voluntary private contributions, reducing the amount of the public charge; and such contributions do not invalidate the acts of the authorities charged with the duty of adjudging whether the improvement shall be made, and its details. Parks v. Boston, 8 Pick. 218; Inhabitants of Freetown v. County Com'rs of Bristol 9 Pick. 46; Copeland v. Packard, 16 Pick. 217; Crockett v. Boston, 5 Cush. 182; Arlington v Cutter, 114 Mass. 344; Dudley v. Cilley, 5 N.H 558; Townshend v. Hoyle, 20 Conn. 1; Dill.Mun.Corp. (4th Ed.) §§ 596, 458. Aside from such contributions, the public ordinarily bears the whole expense actually paid out, and looks only to general taxation for reimbursement. If there are lands which receive from the improvement a benefit or advantage beyond the general advantages to all real estate in the city or town, such peculiar benefit is used to offset and reduce the damage done by taking some part of the particular owner's land, or injuring it in any other manner, but can be availed of by the public in no other way, and can in no event be availed of to reimburse the public for any expenditure actually paid out in making the improvement. In the development of the country, and particularly in the growth of towns and cities, owners of considerable tracts of land often find it for their pecuniary advantage to lay out and construct streets wholly at their own cost, being more than made good by the increased value of their remaining lands, due wholly to the making of the way. The theory of our provisions of law authorizing the assessment of betterments, now contained in Pub.St. c. 51, and some additional statutes (see St.1882, c. 154, § 7; St.1884, cc. 226, 237, 280; St.1885, c. 299; St.1886, c. 210; St.1887, c. 124; St.1891, c. 170, § 3; St.1893, c. 300, § 2; St.1894, c. 288, § 2; St.1896, c. 158), is that in some instances it is just that the public should be reimbursed in whole or in part for the expense of a public improvement, by the owners of lands which it peculiarly benefits, limiting the maximum contribution from any particular owner to an amount well within that of his own peculiar or special benefit which he receives in the increased value of his land. As the instances in which such a forced contribution to the cost of a public improvement is just are frequent in places containing a large population, the betterment laws are in force in cities, while in towns they are not in force, unless accepted by the inhabitants. But, as it would not be wise or just to have all such public improvements made under the betterment system, it is competent for the authorities charged with the duty of determining whether the improvement shall be made to determine, when they adjudge that it shall be made, whether it shall be done under the betterment acts, or in the ordinary way. If done under the betterment acts, the general plan of enforcing the contribution from the individual landowner is to ascertain, after the completion of the improvement, its whole cost, including full land damages, fixed at the value of the land before the making of the improvement, deducting only the value of materials removed by the owner, or of parts of buildings remaining when the value of buildings is allowed for. The peculiar benefit and advantage to every parcel of land which receives from the improvement a benefit or advantage beyond the general advantages to all real estate in the city or town is then adjudged by the authorities who ordered the improvement, and a proportional share of the whole expense of the improvement is assessed by the same authorities upon each parcel of land so peculiarly benefited by the improvement, with the restriction that no such assessment shall exceed one-half the amount of such adjudged benefit and advantage. Thus no person can be forced to contribute in this way more than one-half of the peculiar benefit which has been given him by the public in making the improvement. In the practical working of the system, if the peculiar benefits conferred by the improvement upon individual landowners are more than twice as much as its cost, or just twice as much, its whole cost may be reimbursed to the public by these forced contributions, and nothing borne by general taxation. If the peculiar benefits are less than twice the cost of the improvement, a deficit will remain, to be paid out of the proceeds of general taxation. It is obvious that large powers rest in the hands of those who administer the system in any locality. They are to determine whether the cost of the public improvement shall be defrayed by taxation upon the whole municipality, or to a large extent by the owners of a comparatively small body of land so situated as to be peculiarly affected in value by the improvement. In their judgment lies also the determination of what lands are so affected, and the amount of the peculiar benefit, and of the whole value of the land so benefited. When these matters of judgment have been determined, the amount of each particular assessment is matter of computation.

The power of the legislature to assess upon the abutting estates the whole cost of the improvement of a street was affirmed in the case of Dorgan v. Boston, 12 Allen, 223, decided in January, 1866; the case having arisen under St.1865, c 159, requiring the aldermen of Boston to widen and lay out as a street Washington Square and adjoining streets. In the same year a betterment act (St.1866, c. 174) was made operative in Boston, and was the next year extended to Charlestown (St.1867, c. 224). The constitutionality of this statute was affirmed by the court in 1870, in Jones v. Aldermen of Boston, 104 Mass. 461, upon the ground that the statute did not authorize the aldermen to select at their pleasure some of the estates benefited by the improvement, and lay an assessment upon them, but that the assessment was to be laid ratably upon all the abutting estates which received any benefit. Before this decision the betterment act of Boston had been made applicable by St.1868, c. 75, to any city whose city council should accept it; and in St.1871, c. 382, the legislature put the system in force in all cities, and provided that it should be in force in towns, upon its acceptance by their several town meetings. In the practical application of the system, instances would occur in which the adjudication of land damages by the board which ordered the improvement would be unsatisfactory to the landowner. In such cases the damages might be so large as to more than equal the amount of any betterment assessment which could ultimately be made upon the owner, and the adjustment of the damages by the appellate tribunal might be made only after long litigation. By St.1884, c. 226, the authorities empowered to locate, lay out, or construct streets, ways, or public parks were authorized, whenever they should take or purchase any land therefor, to make an agreement in writing with the owner that the city or town should assume any betterments assessed upon the remainder of his land, or any portion thereof, if he should in turn release, upon such terms as might be agreed upon with them, all claims for damages. The authority given in this statute was used in the proceedings out of which grew the present petitions, and it is contended by the petitioners that the results are such as to make the assessment of betterments invalid, and require it to be quashed. When an agreement is made under St.1884, c. 226, while assessments are made upon all estates benefited, the assessment upon each owner with whom such an agreement has been made is not collected of him, but is assumed by the city or town. This leaves those owners only with whom no such agreement has been made to pay to the city or town a contribution to the cost of the improvement out of their special benefits, while they must further contribute in their general taxes to so much of the cost as is not met by the betterment assessments not assumed by the...