Estes v. City of Newton

• Decision Date: 15 April 1922
• Citation: 241 Mass. 229,136 N.E. 643
• Parties: ESTES v. CITY OF NEWTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 229

136 N.E. 643

ESTES

v.CITY OF NEWTON.

Supreme Judicial Court of Massachusetts, Middlesex.

April 15, 1922.

Exceptions from Superior Court, Middlesex County; Jabez Fox, Judge.

Proceeding by Grace D. C. Estes against the City of Newton to revise a betterment assessment levied on property of the petitioner for the laying out of a road as a public way. Verdict for the petitioner, and defendant brings exceptions. Exceptions sustained, and judgment rendered for respondent.

The city offered evidence tending to show that the petitioner with others signed and presented to the aldermen a petition requesting that such road be laid out, graded, and accepted as a public highway, and that she, with others who were abutters on the road, executed a quitclaim deed of land conveyed for the purpose of widening the existing roadway and containing an acknowledgment of full payment of damages and an agreement to pay any assessment for betterments that might be levied. At the close of the evidence respondent moved for a directed verdict, which the court denied, and respondent duly excepted. The jury reduced the assessment against petitioner.

Edward M. Moore and Arthur W. Blakemore, both of Boston, for plaintiff.

Joseph W. Bartlett, City Sol., of Boston, for respondent.

CROSBY, J.

This is a petition to revise a betterment assessment of $3,208.92, levied by the respondent under St. 1917, c. 344, pt. 3, on land of the petitioner on Algonquin road in the city of Newton, for the paying out of that road as a public way. It appears from the record that Algonquin road is a street leading in a northerly direction from Commonwealth avenue in Newton, near the Boston line, circling around the side of a steep hill called Waban Hill ‘and coming to a stop at a dead end.’ The property of the petitioner is located on the lower side of the way. The street as completed had throughout its length a rock foundation, gravel surface, covered with a blanket mixture of bitumen and sand.

There was evidence that on September 22, 1919, the petitioner with others signed and presented to the aldermen of the city of Newton a petition praying that Algonquin road be laid out as a public way, that the same be so laid out under the law relatingto the assessment of betterments, and that there should be established building lines ten feet from the exterior lines of the street. On September 29, 1919, the petitioner, with others who were abutters on the way, executed a quitclaim deed to the city, which was delivered on or about April 8, 1920, and was duly recorded in the registry of deeds. The lands described included that of the petitioner and were conveyed for the purpose of widening the then existing way. The deed contained the following among other covenants and agreements:

‘We acknowledge full payment for all claims upon said city for any damages on account of the laying out and construction of said way according to the lines and grades shown upon said plan and profile and agree to pay any assessments for betterments that may be levied therefor.’

Thereafter, on June 7, 1920, the board of aldermen adopted an order for the laying out of the way and the grading, and acceptance thereof, and the establishing of the grade therefor under the provisions of law authorizing the assessment of betterments. After the completion of the work, an order was adopted by the board assessing the abutters, including the petitioner, with the amounts severally set forth in the record as their proportional shares respectively of the cost of the work,-the sum so assessed not exceeding one half of the adjudged betterment and advantage to the estates respectively by said laying out and grading of the way.

At the close of the evidence, the respondent moved that the court direct the jury to find in its favor. The motion was denied and the respondent excepted. The jury reduced the assessment to $1,673.

The respondent relies on the agreement recited in the deed as a bar to the maintenance of the petition; the petitioner contends that the agreement relates to a final assessment to be determined by a jury. The words of the agreement contained in the deed from the petitioner and others to the city are:

‘We * * * agree to pay any assessments for betterments that may be levied therefor.’

In determining the sense in which these words were used by the parties, it is not without significance to have in mind the proceedings which led up to the...