G. L. c. 80, § 1]

Exemptions from Special Assessments

It is well settled that the exemption from taxation granted by general laws' to certain property of charitable and other corporations of similar character does not per se include an exemption from special assessments. Charitable institutions are exempted from taxation because they usually relieve the community of a burden which it would itself be obliged to bear. A special assessment frequently takes the place of a set-off of benefits from the damages caused by the construction of a public work, and if land was taken from a charitable corporation and it was not assessed for betterments it would receive a greater amount in damages than the amount of injury incurred, and this excess might have to be met by the other abutters. There is no reason that the abutters should bear this additional expense merely because the whole community is relieved of a burden by the charitable acts of the corporation. While this situation would not arise in every case and is less likely since assessments have been limited to actual benefit, it formed a strong reason for the establishment of the rule, and the rule as a rule is still in force. When however the property sought to be assessed is devoted by statute to a perpetual use which can derive no enjoyment of the improvement for which the assessment is levied, it cannot be subjected to such assessment, not so much on account of an exemption from taxation, whether derived from general laws, the charter of the corporation or from implication of law, but because an assessment cannot constitutionally be levied on property for the cost of an improvement which cannot by any possibility benefit it for either use or sale.3

In some cases it will be plain as a matter of law that a particular public improvement will be of no benefit to a neighboring charitable or educational institution. In other cases how1G. L. c. 59, §5, supra, page 193.

2 Boston Seamen's Friend Society v. Boston, 116 Mass. 181 (1874), a case of a betterment for widening a street, assessed upon a charitable corporation. The principle was applied, in Worcester Agricultural Society v. Worcester, 116 Mass. 189 (1874), to a sewer assessment upon an agricultural society, in Phillips Academy v. Andover, 175 Mass. 118 (1900), to a street watering assessment upon an educational corporation and in Garden Cemetery Corporation v. Baker, 218 Mass. 339 (1914) to a street watering assessment upon a cemetery corporation. See also to same effect Illinois Central R. R. Co. v. Decatur, 147 U. S. 190 (1893).

Mount Auburn Cemetery v. Cambridge, 150 Mass. 12 (1889); Boston v. Boston & Albany R. R. Co., 170 Mass. 95 (1898).

[G. L. c. 80, § 1 ever whether the improvement might confer a benefit upon the institution is a question of fact, and must be determined in the same manner as any other question of fact, and a finding made thereon by the trial court; and if the institution would receive a benefit it is liable to assessment.*

The exemption from general taxation which, it has been held, extends by implication to all property devoted to the public use includes special assessments as well, for the principles of propriety, justice and expediency upon which the exemption rests are applicable àlike to every kind of taxation. Moreover,

as such assessments are usually enforceable only by a sale of the land assessed, it can hardly have been the intention of the legislature to impose them upon land which is one of the instrumentalities by which public duties are performed.'

When the exemption is contained in the charter of the corporation, whether it includes special assessments depends upon the wording of the charter. An exemption from all taxes does not in itself include special assessments, but freedom from “all civil impositions, taxes and rates" is, it has been held, sufficiently broad to include special assessments."

Time of Levy

Until 1869 there was no requirement in the case of betterment assessments for highway purposes that the assessment should not be made until the work was completed or that it should be made within any specified limit of time, but in that year by separate enactments such requirements were imposed, two years from the order being the limit in the latter case.1 Garden Cemetery Corporation v. Baker, 218 Mass. 339 (1914). Supra, page 217.

5

Worcester County v. Worcester, 116 Mass. 193 (1874); Boston v. Boston & Albany R. R. Co., 170 Mass. 95 (1898).

'Worcester County v. Worcester, 116 Mass. 193 (1874). And see also Mount Auburn Cemetery v. Cambridge, 150 Mass. 12 (1889). This is not the only ground for the rule, however, for the same decision was made in the case of an assessment enforceable by action at law. Boston v. Boston & Albany R. R. Co., 170 Mass. 95 (1898).

Boston Asylum and Farm School for Indigent Boys v. Street Commissioners of Boston, 180 Mass. 485 (1902).

1

Harvard College v. Aldermen of Boston, 104 Mass. 470 (1870).

For a history of this legislation see Foster v. Park Commissioners, 133 Mass. 321 (1882). As to the levy of assessments before the completion of the improvement see Jones v. Metropolitan Park Commissioners, 181 Mass. 494 (1902).

G. L. c. 80, § 1]

Under the earlier statutes it was held that an abutter could not complain if he was assessed before the street was fully completed, because his assessment was thereby less than it would otherwise have been and the city was still bound to complete the street. Under the statutes in their later form it was held that an assessment would not be defeated by a failure to complete the way in trivial and unimportant particulars, but that an assessment must be considered as a claim by the public authorities that the way was completed and the benefit fixed by the condition of the way as it then stood. As far as the other requirement, that the betterments be assessed within two years of the order of laying out is concerned, it was held that there must be an order upon which to base the assessment even before the statute was so clear in requiring it, and it was held that the two years' period did not begin to run until the order received the adoption or approval legally necessary to put it in force."

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While these statutes were in force, if the construction of a public highway was not completed for any reason until after two years from the order establishing it, no betterments could be assessed. As the statutes provided no means of giving notice to the public of the anticipated amount of the assessment or of the area to be assessed, such a limitation was of importance; in the case of sewers, to which it did not apply, assessments levied many years after the order of construction were held valid. When the general betterment act was enacted in 1918,

2 Whiting v. Mayor & Aldermen of Boston, 106 Mass. 89 (1870).

In Chase v. Aldermen of Springfield, 119 Mass. 556 (1876), it was held that the mere fact that railings and barriers had not been erected did not make the work incomplete so that betterments could not be assessed. In Lincoln v. Worcester, 122 Mass. 119 (1877), it was held that the fact that the sidewalk opposite petitioner's land at the point where it was crossed by his driveway was not brought to grade did not defeat the assessment.

In Chase v. Aldermen of Springfield, 119 Mass. 556 (1876), it was held that a betterment was not invalid "because no grade line has been established." The rights and liabilities of abutters depend on the grade actually constructed. In Lincoln v. Worcester, 122 Mass. 119 (1877), it was said by the court that the act of making the assessment is a claim on the part of the respondent that it has done the widening and grading which it intended to do; and, in considering the reasonableness and justice of the assessment the jury are to consider what has actually been done rather than what on paper was directed to be done.

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Hitchcock v. Aldermen of Springfield, 121 Mass. 382 (1876).

* Quinn v. Cambridge, 187 Mass. 507 (1905); Jewett v. Mayor of Medford, 233 Mass. 65 (1919).

See for example Hester v. Collector of Brockton, 217 Mass. 422 (1914), in which an assessment levied seventeen years after the order for construction was sustained.

[G. L. c. 80, § 1 inasmuch as provision was made for recording notice of the anticipated amount of assessment and of the area to be assessed, no reason remained for strictly limiting the time of the assessment or denying the right to levy an assessment in cases of improvements which could not be completed within two years; and the only limitation of time imposed under the present law is that the assessment must be levied within six months after the completion of the improvement.

Assessment Limited to the Actual Cost and to the Actual

Benefit

The amount of the betterment assessment levied for a particular public improvement is strictly limited to the cost of improvement. The fact that a special benefit is derived from the improvement furnishes a justification for the imposition of a betterment assessment, but such benefit would not of itself warrant the exaction of money by way of compensation therefor. The estates are assessed not for the benefit conferred but for the cost of the improvement, and the benefit is merely a means of apportioning the cost.1

The statute provides that the assessable cost shall include all damages awarded under chapter seventy-nine; and the cost clearly includes only such damages as may be recovered in legal proceedings, and if a city or town pays a sum as damages which it is under no legal obligation to pay the amount so paid cannot be included in the assessable cost. It does not of course follow that a person assessed can contest the amount of awards and adjustments of damages made in good faith, or even object to a compromise when the legal liability of the city or town was really a disputed question.

The rule of damages is precisely the same whether the order of taking states that betterments are to be assessed or not, except that if betterments are not to be assessed the special benefit to the land from the improvement is set off from the dam

G. L. c. 80, §2, infra, page 681.

'Chase v. Aldermen of Springfield, 119 Mass. 556 (1876), and see also Supra, Part I, §68.

2 Fuller v. Somerville, 136 Mass. 556 (1884).

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G. L. c. 80, § 1] ages, but if betterments are to be assessed such benefit is not set off but the benefits are separately assessed.*

The assessment upon each estate is strictly limited to the actual benefit (in excess of the general advantage to the community) to such estate. This limitation is imposed by the constitution itself. The street betterment act limited the assessment to one-half the benefit, and this same limitation was contained in the general betterment act as first enacted; but in the following year the limitation to one-half the benefit was struck out. While in the case of a public improvement abutting upon lots of similar depth and similar character it may be a reasonable method for the board which levies the assessment to apportion the burden among the different lots in proportion to frontage upon the improvement or according to some other arbitrary measure, it must be remembered that the law contemplates a determination of the actual benefit to each lot, and that if the estates assessed are of different characteristics and are affected by the improvement in different ways, an assessment by linear foot of frontage or by any other arbitrary measure is improper.

While it is not proper to join together the cost of two separate and independent public improvements and to assess the cost in proportion to the benefits derived from both improvements, there is no objection to an assessment based upon the

* Benton v. Brookline, 151 Mass. 250, 261 (1890).

In the early betterment acts of the present series, inasmuch as they applied only to cities, and the same board of officers that laid out the streets and awarded the damages assessed the betterments, it was held that no benefits could be set off against the damages. Godbold v. Chelsea, 111 Mass. 294 (1873). And see also Prince v. Boston, 111 Mass. 226 (1872); Bancroft v. Boston, 115 Mass. 377 (1874); Boston Seamen's Friend Society v. Boston, 116 Mass. 181 (1874). When a few years later the betterment acts were extended to towns and authorized city or town officials to assess betterments for ways laid out by county commissioners, inasmuch as when the damages were awarded it could not be known whether betterments would be assessed, special benefits were allowed to be set off from the damages and the betterments excluded special benefits and included only local benefits. Upham v. Worcester, 113 Mass. 97 (1873); Green v. Fall River, 113 Mass. 262 (1873); Wood v. Hudson, 114 Mass. 513 (1874). When in 1874 it was provided that every way should be deemed laid out under the highway act unless the order laying it out expressly declared it to be under the betterment act, there was no further occasion to exclude special benefits from the betterments or allow them to be set off from the damages. Benton v. Brookline, 151 Mass. 250, 264 (1890).