[G. L. c. 80, § 1 ment act applicable to all streets in Boston was enacted. In 1867 the statute was extended to include Charlestown and in 1868 to any city whose city council should accept it, and in 1871 it was put in force in all cities, and in all towns which should vote to accept it. Park betterments were first authorized by general laws in 1882, street watering assessments in 1890, and assessments for the destruction of insect pests in 1905.3

When the revision and consolidation of the general laws was undertaken in 1916, the commissioners found the laws relating to betterments and special assessments in much confusion. From time to time, as the need had arisen, laws had been passed authorizing the imposition of assessments for different kinds of improvements, and many special betterment laws had also been enacted applicable to particular cities and towns or to districts affected by particular improvements. The result was that while the same general principles of law had been established in all cases, the details of administration were different in different cities and towns and in different classes of improvements. As a consequence there was much uncertainty and confusion as to the law applicable in any particular case, and furthermore, on account of the piecemeal manner in which the law had been built up there were certain classes of public improvements which conferred a direct benefit upon adjoining land, but with respect to which no provision for the assessment of the benefit existed.*

The commissioners thereupon caused to be prepared a draft of a statute establishing a uniform system for the assessment of betterments, and this statute was enacted in 19185 and went into effect in 1921 as chapter eighty of the General Laws. The effect of this statute was two-fold. In the first place it established a uniform precedure for the levying of betterment assessments, and superseded the existing procedure in each case whether established by general or by special laws. In this respect it was merely a change in procedure. In the second place it extended the right to levy betterment assessments to every

The history and development of the provisions of statute authorizing betterment assessments for particular classes of improvements may be found in the first edition of this work, which was published while these statutes were still in force.

*See Preliminary Report of Commissioners to Consolidate and Arrange the General Laws, p. 228.

St. 1918, c. 257, §219.

G. L. c. 80, § 1]

public improvement laid out by a public governmental body whenever a limited and determinable area received a special benefit from the improvement. In this respect it made an important change in the substantive law, extending the power of levying betterments to all cases in which betterments might be constitutionally levied and dispensing with the necessity of special statutory authority to justify an assessment on any particular class of improvement. It thus not only included other improvements than those already enumerated in the statutes authorizing betterment assessments, but also extended the power of levying betterments which had previously been commonly limited to cities and to such towns as had accepted particular betterment acts, to all towns and counties in every case which might arise.

It is to be noted however that the statute is limited in its' application to improvements laid out or established by a formal vote or order and that it does not include construction or other work performed on land already owned or controlled by the public authorities, or work which requires no formal order to establish it. Accordingly, assessments for the establishment of sewers and sidewalks in existing public ways, or for sprinkling streets or for exterminating insect pests are not within the scope of the statute, and the statute does not ex proprio vigore extend to such assessments even with respect to its administrative provisions. It will be found however that most of the statutes which authorize assessments of such a character specifically adopt by reference the administrative provisions contained in the chapter on betterments."

The statutes authorizing the levy of betterments were not intended to provide an exclusive method by which the cost of laying out and constructing public improvements should be met." The method which had, except in a few instances, been always employed of paying the entire cost by general taxation except so far as the damages were reduced by set-off of special benefits or the expenses met by voluntary private contribution was left in full force and intended to be the ordinary mode of proceeding.

6 See G. L. c. 83, §28, infra, page 726 (sewers and sidewalks); G. L. c. 85, §6, infra, page 727 (removal of snow); G. L. c. 111, §§136, 138, infra, page 729 (drainage of wet lands); G. L. c. 252, §13, infra, page 751 (improvement of low lands); G. L. c. 252, §19, infra, page 753 (roads to swamps and quarries). 7 Sexton v. North Bridgewater, 116 Mass. 200 (1874).

[G. L. c. 80, § 1 As however 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, and as the set-off of special benefits from damages may result in an unequal and disproportionate distribution of the burden of paying for the benefit, since one who is damaged but little if any may be very greatly benefited and yet contribute neither money nor land to the improvement, while another who receives no greater benefit but whose land of value equal to or greater than the amount of the benefit happens to be taken thereby pays in full for the benefit his remaining land receives, in some instances it is more just to the public and to the individual owners that the public should be reimbursed in whole or in part for the expense of a public improvement by the owners of land which it peculiarly benefits, in proportion to and not exceeding the benefit which each receives. It would not however be wise and just to lay out all public improvements under the betterment system, and for this reason it is expressly provided that betterments shall not be assessed for a public improvement unless the order establishing the improvement expressly provides that betterments are to be assessed therefor."

What Benefits Can Be Assessed.

There may be three classes of benefits arising from a public improvement. (1) General benefits or those arising from causes which affect the entire community and perhaps raise the value of land in an entire city or town. (2) Local benefits, or those accruing to an entire neighborhood by reason of its proximity to the improvement. (3) Special benefits, or those relating to a particular estate by reason of its direct relation to the improvement. To illustrate by a concrete case, suppose a new highway is constructed from the center of one municipality to a neighbor

Atkinson v. Newton, 169 Mass. 240, 245 (1897).

See also G. L. c. 79, §1. It was at first held to be a question of fact whether a highway was laid out under the betterment act, Allen v. Charlestown, 109 Mass. 243 (1872); Godbold v. Chelsea, 111 Mass. 294 (1873); Sexton v. North Bridgewater, 116 Mass. 200 (1874); Ryan v. Boston, 118 Mass. 248 (1875), but in 1874 provision was made that every public way should be deemed to be laid out under the highway act unless the order laying it out expressly declared the proceedings to be under the betterment act. St. 1874, c. 275, §2; Masonic Building Association v. Brownell, 164 Mass. 306 (1895).

G. L. c. 80, § 1]

ing city with which good road connection had previously been lacking. The benefit to the whole municipality by increased facility of communication with the neighboring city is the general benefit. The benefit to the section through which the new highway passes in increasing values for business use on account of the traffic upon the new highway is the local benefit. The benefit to a particular parcel by reason of its being left in a desirable size or shape or in fronting upon a desirable street is the special benefit.1

Long before the assessment of betterments for public improvements such as streets or sewers had become the general practice, it was customary, when land had been taken for a public improvement and the owner was seeking compensation, to require the benefit to his remaining land to be set off from the damages and this is still done when betterments are not assessed. Under the highway act and some other similar statutes only special benefits were allowed to be set off, but this rule was merely a matter of construction; there is no constitutional requirement that local benefits cannot be set off, and, under statutes which are worded so as to authorize it, both local and special benefits are the subject of set-off. Of course the same benefits cannot be both the subject of set-off and of an assessment of betterments, and under the early betterment acts, inasmuch as the special benefits were still set off from the damages, the betterment was confined to the local benefits." The statutes which permitted the set-off of special benefits when Upham v. Worcester, 113 Mass. 97 (1873); Bancroft v. Boston, 115 Mass. 377 (1874); Baker v. Boston Elevated Ry. Co., 183 Mass. 178, 182 (1903).

1

5

2 Commonwealth v. Coombs, 2 Mass. 489 (1807); Commonwealth v. Sessions of Norfolk, 5 Mass. 435 (1809); Palmer Co. v. Ferrill, 17 Pick. 58 (1835). Baker v. Boston Elevated Railway Co., 183 Mass. 178 (1903); Peabody v. Boston Elevated Railway Co., 191 Mass. 513 (1906); Fifty Associates v. Boston, 201 Mass. 585 (1909).

4 Meacham v. Fitchburg R. R. Co., 4 Cush. 291 (1849); Dickinson v. Fitchburg, 13 Gray 546 (1859); Whitman v. Boston & Maine R. R., 7 Allen 313 (1863); Paine v. Woods, 108 Mass. 160 (1871); Hilbourne v. Suffolk, 120 Mass. 393 (1876); Parks v. Hampden, 120 Mass. 395 (1876); Childs v. New Haven & Northampton Co., 133 Mass. 253 (1882).

Baker v. Boston Elevated Ry. Co., 183 Mass. 178 (1903); Peabody v. Boston Elevated Ry. Co., 191 Mass. 513 (1906).

Benton v. Brookline, 151 Mass. 256 (1890); Garvey v. Revere, 187 Mass. 545 (1905). When a betterment assessment might have been but has not been laid, benefits which would have been included in the assessment cannot be set off in a petition for damages. Atkins v. Boston, 188 Mass. 77 (1905).

'Green v. Fall River, 113 Mass. 262 (1873); French v. Lowell, 117 Mass. 363 (1875).

[G. L. c. 80, § 1 betterments were to be assessed were changed by later enactments, so that now it is the general rule that an assessment of betterments includes both local and special benefits. General benefits cannot of course be the subject either of set-off or of assessment for betterments."

It follows from what has already been said that in distinguishing between general benefits and local benefits for purposes of taxation, distinctions which have been drawn by the courts between the different classes of benefits for the purpose of fixing damages under the power of eminent domain are of no importance as precedents,10 unless the statute under which the damages were awarded provided for the set-off of all benefits not general.11 Any actual advantageous effect upon a well defined and limited part of a city or town can be recognized as a benefit when it comes to the imposition of a special assessment under the power of taxation.12 In other words every kind of benefit and advantage which enters into the value of the land beyond the advantage received generally by all land in the city or town may be considered,13 and it is not even necessary that the local benefit differ from the general benefit in kind if there is an appreciable difference in degree.1

14

The rules by which the amount of benefit conferred upon land by a public improvement is to be ascertained are the same as those by which land values are to be determined in any other connection. The inquiry is how much has the particular public improvement added to the fair market value of the property, as between a willing seller and a willing buyer, with reference to all the uses to which it is reasonably adapted and for which it is plainly available, prospective as well as present, by strangers as well as by the owner, considering chances and probabilities of future use only if sufficiently near in time and definite in kind to be of practical importance and to enter into present market value.15

8 Benton v.

Brookline, 151 Mass. 250 (1890).

Upham v. Worcester, 113 Mass. 97 (1873); Baker v. Boston Elevated Railway Co., 183 Mass. 178, 182 (1903).

10 Sears v. Street Commissioners of Boston, 180 Mass. 274 (1902).

11 As in Peabody v. Boston Elevated Ry. Co., 191 Mass. 513 (1906).

12 Sears v. Street Commissioners of Boston, 180 Mass. 274 (1902).

13

14

Peabody v. Boston Elevated Ry. Co., 191 Mass. 513 (1906)..

Peabody v. Boston Elevated Ry. Co., 191 Mass. 513 (1906).

15 Driscoll v. Northbridge, 210 Mass. 151 (1911).