[G. L. c. 80, § 1 cost and benefit of an improvement taken as a whole, even if it includes distinct and separate elements. if it is, in fact, but a single improvement.

Street Betterments in the City of Boston

As already stated, the modern development of street betterment assessments in this commonwealth originated with a special statute applicable to certain streets in Boston, and soon afterwards a statute applicable to Boston generally was enacted which was gradually extended throughout the commonwealth and constitutes in large measure the basis of the present general betterment act. Originally the assessments were made in Boston by the board of aldermen, but the board of street commissioners was established in 1870 and the power to assess betterments was transferred to this board in the following year.1

In 1891 an elaborate statute regarding highways in the city of Boston, generally called the board of survey act, was enacted2 which made especial provision for betterment assessments, and many extensive improvements were projected and undertaken; but in 1901 the portion of the statute relating to betterments was held to be unconstitutional in that it authorized the assessment of the whole cost of laying out and constructing a highway to be assessed in proportion to benefits without regard to the possibility that the actual benefit in each case might be exceeded.3 About this time assessments for betterments under other statutes had been held invalid by the court, some on account of the unconstitutionality of the statute, and others on account of irregular or illegal action of the public authorities in proceedings on which the assessments were founded. It was supposed that there were other invalid assessments and other completed improvements for which assessments of betterments had been contemplated, which in view of these decisions could not then be legally made. Under these circumstances in 1902 a statute was enacted amending the board of survey act and providing for assessments

8 Lincoln v. Street Commissioners, 176 Mass. 210 (1900); Sears v. Street Commissioners, 180 Mass. 274 (1902); American Unitarian Association v. Commonwealth, 193 Mass. 470 (1907); Quinn v. Mayor and Aldermen of Springfield, 233 Mass. 595 (1919).

'See Bigelow v. Boston, 123 Mass. 50 (1877).

2 St. 1891, c. 323.

3 Lordon v. Coffey, 178 Mass. 489 (1901); Harwood v. Street Commissioners of Boston, 183 Mass. 348 (1903).

G. L. c. 80, §§ 1, 2]

for public ways subsequently laid out in accordance with constitutional principles; and about the same time another statute was enacted authorizing the re-assessment in a constitutional manner of assessments for public ways completed within six years before the passage of the act. This last statute was held to be constitutional," to apply to assessments invalid for irregularity as well as to those laid out under an unconstitutional statute and to apply to ways laid out more than six years. before its passage if completed within six years of its passage.

8

There were further amendments to the amended board of survey act and in 1906 a new statute was passed covering the whole subject. This statute operated in a satisfactory manner, and when the general betterment act was enacted in 1918, and superseded all special acts then in force with relation to the levying of assessments, many of the advantageous features of the city of Boston statute were incorporated into the general betterment act, and thus extended throughout the commonwealth.

Plan and Estimate

SECTION 2. An order under section one which states that betterments are to be assessed for the improvement shall contain a description sufficiently accurate for identification of the area which it is expected will receive benefit or advantage, other than the general advantage to the community, from such improvement, and shall refer to a plan of such area, and shall contain an estimate of the betterments that will be assessed upon each parcel of land within such area; and such order, plan and estimate shall be recorded, within thirty days from the adoption of the order, in the registry of deeds of every county or district in which the benefited area is situated. No betterments shall be assessed for such improvement unless the order, plan and estimate are recorded as herein provided, nor upon any parcel of land not within such area, nor for a greater amount than such estimate.

6

St. 1902, c. 521.

5 St. 1902, c. 527.

Warren v. Street Commissioners of Boston, 187 Mass. 290 (1905).

'Warren v. Street Commissioners of Boston, 187 Mass. 290 (1905).

New England Hospital v. Street Commissioners of Boston, 188 Mass. 88 (1905).

St. 1906, c. 393.

[G. L. c. 80, §§ 2, 3 This section was intended to remedy an evil which had long existed in the betterment laws. The lien for a special assessment arose, under the law as it previously existed, when the order for the laying out of the improvement upon which it was based was adopted;1 but although such lien constituted an encumbrance, it was not of record in the registry of deeds, and the extent of the area to be assessed and the probable amount of the assessment could not be determined even by an examination of the records of the board which laid out the improvement. Thus an inchoate betterment assessment remained a hidden menace in the conveyance of real estate.

2

Since 1880, statutes had been enacted, providing for the recording of notice of intent to levy a betterment assessment and the service of personal notice upon the owners of land liable to assessment, but these statutes were in force only in such cities as accepted them through the action of the city council; and as they were intended for the benefit of the citizens rather than of the city, and their provisions were found impracticable, they were rarely used. In the special act relating to the city of Boston, provision was made for an estimate of the betterments when a street was laid out, and the amount of the estimate was not allowed to be exceeded.3

The present statute was enacted as a part of the general betterment act of 1918, and carries to its logical conclusion the principle of giving record notice of a betterment assessment so far as can be done before the work is constructed and the cost determined. While it imposes additional trouble and expense upon the officers of a city or town, it is believed that the convenience to property owners and others dealing with real estate far exceeds the inconvenience to those who duty it is to carry out the law.

Surrender of Estate Assessed

SECTION 3. An owner of land abutting on a public improvement and liable to assessment therefor under this chapter may give notice in writing to the board, within three months after the award of damages is made, that he elects to surrender his land; and if said

'Blackie v. Hudson, 117 Mass. 181 (1875); Carr v. Dooley, 119 Mass. 294 (1876); Maloy v. Holl, 190 Mass. 277 (1906).

* St. 1880, c. 187, §§1-3, inc.; St. 1907, c. 344, §§ 24-26, inc.

3

St. 1906, c. 393, §§2, 5.

G. L. c. 80, § 3]

board adjudge that the public convenience and necessity require the taking of such abutting estate for the improvement named, they may take the whole thereof, and shall thereupon estimate its value, excluding the benefit or advantage accruing from such improvement; and such owner shall convey the estate to the body politic or corporate on behalf of which the assessment was made and may recover therefrom in contract the value so estimated. The commonwealth, county, city, town or district may sell any portion of said land which is not needed for such improvement.

This section was adopted almost verbatim from the street betterment act, but was modified so as to cover all public improvements, and the right to offer to surrender was extended so that it might be exercised any time within three months after the award of damages. The principle of the statute was embodied in various special acts; but in some of these the right to surrender was absolute.1

2

5

A person holding any estate or interest in land is an "owner of land" within the meaning of this statute and entitled to surrender his estate or interest. This or a similar statute has been held to apply to a tenant in common,3 to a mortgagee1 and to the holder of an equity of redemption. The requirement that the land abut upon the way is construed strictly and land separated from it by another way cannot be surrendered." The right to surrender is not a personal right in the owner, but the assessment being a lien and surrender being a means of paying the assessment, the right to surrender runs with the land."

When an assessment has been levied, the authority of the board which levied it is exhausted, and it cannot by vacating the assessment deprive the landowner of his right to surrender."

1

Under the earlier law an offer to surrender had to be made before the estimate of damages, and could not be made after the laying out of a public way even if there was no adjudication as to damages, for a failure to award damages is equivalent to an award of no damages. Taintor v. Mayor and Aldermen of Cambridge, 197 Mass. 412 (1908).

2 Leavitt v. Cambridge, 120 Mass. 157 (1876); Farnsworth v. Boston, 121 Mass. 173 (1876); Barnstable Savings Bank v. Boston, 127 Mass. 254 (1879).

* Leavitt v. Cambridge, 120 Mass. 157 (1876).

'Barnstable Savings Bank v. Boston, 127 Mass. 254 (1879). Farnsworth v. Boston, 121 Mass. 173 (1876).

Holt v. Somerville, 127 Mass. 408 (1876).

'Barnstable Savings Bank v. Boston, 127 Mass. 254 (1879).

Farnsworth v. Boston, 121 Mass. 173 (1876); Barnstable Savings Bank v.

Boston, 127 Mass. 254 (1879).

[G. L. c. 80, §§ 3, 4 Under statutes which gave the owner an absolute right to surrender, it has been held that mandamus is the proper remedy to enforce the right to surrender; and the smallness of an assessment does not destroy the owner's right.10 If part of an estate has been taken for the way and the owner has made a settlement with the public authorities and given a warranty deed he cannot surrender the residue.11

Collection

SECTION 4. Within a reasonable time after making the assessment the board shall commit the list of assessments upon land in each town with their warrant to the collector of taxes thereof, and he shall forthwith send notice in accordance with section three of chapter sixty, to the person to whom each parcel was assessed at the last preceding annual assessment of taxes. Except as otherwise herein provided, the collector shall have the same powers and be subject to the same duties with respect to such assessments as in the case of the annual taxes upon real estate, and the law in regard to the collection of the annual taxes, to the sale of land for the non-payment thereof and to redemption therefrom shall apply to assessments made under this chapter, so far as the same are applicable; but the owner of land assessed shall not be personally liable for the assessment thereon. Every collector of taxes receiving a list and warrant from the board shall collect the assessment therein set forth, and at such times as the board shall direct shall pay over to the treasurer of the body politic on behalf of which the assessment was made the amounts collected by him. All assessments apportioned under section thirteen, and all other assessments on real estate constituting a lien thereon and remaining unpaid on April first in any year, shall be placed on the annual tax bill for such real estate.

Under the earlier statutes there was no express provision for the commission of betterment assessments to the collector with a warrant, signed by the board which levied the assessment, directing him to collect the assessment, and the practice in the different cities and towns was not uniform. In general, in cases where the assessment took the form of a general charge

Leavitt v. Cambridge, 120 Mass. 157 (1876); Farnsworth v. Boston, 121 Mass. 173 (1876); Barnstable Savings Bank v. Boston, 127 Mass. 254 (1879). 10 Barnstable Savings Bank v. Boston, 127 Mass. 254 (1879). "Holt v. Somerville, 127 Mass. 408 (1879).