G. L. c. 80, §§ 7, 8]

of the original order; when the assessment cannot be levied until the work is completed the jury is to consider what the improvement actually consists of and not what was planned in the laying out.R

The petitioner is not limited to showing that the assessment exceeded the actual benefit; but he may show that he has suffered by being obliged to pay a disproportionate amount of the cost even if the special benefit was not exceeded."

Death of Person Entitled to Petition

SECTION 8. If a person who is entitled to petition for an abatement under this chapter dies within the time limited for such petition without having filed the same, his executor, administrator, heir or petitioner cannot introduce evidence that a culvert which occasioned part of the expense in the widening of the street was of no benefit to him. The question is as to the benefit of the whole construction of the street, and petitioner had no right to introduce evidence as to the benefit resulting from any particular piece of work done in the course of such construction.

In Treadwell v. Boston, 123 Mass. 23 (1877), it was held that, the question being the permanent advantage, if any, the temporary inconvenience caused by the construction was so insignificant and remote that it might properly be excluded as an element. Evidence that the most beneficial use of a lot assessed would be to erect buildings fronting on a street not the one widened is, however, admissible; it tends to reduce the benefit likely to accrue from the widening of a street that would be only a side street so far as the lot in question was concerned.

In Beals v. Brookline, 174 Mass. 1 (1899), it was held that evidence of the cost of a covered channel by a different plan of location is inadmissible, as opening up collateral questions. In the absence of anything to the contrary it is to be assumed that the plan adopted by the selectmen was proper and reasonable. Evidence that on account of the taking petititioner was not able to cut his land up into lots of the most desirable shape was inadmissible as too remote.

In Driscoll v. Northbridge, 210 Mass. 151 (1911), it was said by the court that 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. Chances and probabilities of future use, if sufficiently near in time and definite in kind to be of practical importance, enter into present market value and so far as they enhance or diminish it are given full weight. But where they are so remote to rest chiefly in the imagination, and do not in fact influence the price which customers would be willing to pay in a present sale, they cannot be the basis of a determination of benefit or value.

'Jones v. Aldermen of Boston, 104 Mass. 461 (1870); Boston Seamen's Friend Society v. Boston, 116 Mass. 181 (1874); Treadwell v. Boston, 123 Mass. 23 (1877).

8 Lincoln v. Worcester, 122 Mass. 119 (1877).

Whiting v. Boston, 106 Mass. 89, 97 (1870); Prince v. Boston, 111 Mass. 226, 232 (1872); Keith v. Boston, 120 Mass. 108 (1876); Lincoln v. Street Commissioners, 176 Mass. 210 (1900).

[G. L. c. 80, §§ 8, 9 devisee, if interested, may, within one year after his interest vests, file such petition in the same manner and with the same effect as if filed by the deceased in his lifetime.

This section was taken from a provision which had been in force since 1859, but had previously been contained in the chapter on survival of actions. If the assessment has been paid, the right to an abatement and partial refund is a chose in action which passes to the executor or administrator and not to the heir or devisee, or to any grantee of the land;1 but if the assessment has not been paid, as it was not a personal liability of the decedent but a charge on the land, it would seem that the right to petition would lie in the heir or devisee,2 unless it was necessary for the administrator to sell the land in order to pay debts or legacies or otherwise to comply with the terms of the will.3

Procedure on Petition to Superior Court

SECTION 9. Upon the filing of a petition under section seven, process shall issue and service be made as in suits in equity upon the body politic on behalf of which the assessment was made. Any defence to the petition not relating to the amount of the assessment must be pleaded within thirty days of the return day of the subpoena; but no answer relating solely to the amount of the assessment shall be filed, and there shall be no default for failure to enter an appearance. The trial shall be by the court unless one of the parties within the time prescribed in actions at law files a notice that he desires a trial by jury; and the court may appoint an auditor. Interrogatories may be filed with the same effect as in actions at law. The court, at the request of any party, shall advance the petition so that it may be heard and determined with as little delay as posible. In case petitions have been filed for the assessment of damages and for the abatement of betterments with respect to the same parcel of land and the same public improvement, the petitions shall be tried together. In case of trial by jury, if either party requests it the jury shall view the premises. If the. assessment is not reduced the respondent shall recover costs and an execution shall issue therefor as in actions

1 See Webster v. Lowell, 139 Mass. 172 (1885).

2 See Crandell v. Taunton, 110 Mass. 421 (1872); Barnstable Savings Bank v. Boston, 127 Mass. 254 (1879).

See Old Colony Trust Co. v. Treasurer & Receiver General, Mass. (1921).

G. L. c. 80, §§ 9-11]

at law; but if the assessment is reduced the petitioner shall recover judgment for costs, and the assessment so determined shall stand as the assessment upon the land, and if it has not been paid shall be collected in the manner provided for an original assessment. If the assessment has been paid judgment shall be entered for the petitioner for the amount of the reduction, with interest at the rate of four per cent per annum from the time of payment.

This section was designed in part to provide express rules in regard to procedure, which had been given very little attention in the earlier statutes and in part to bring the procedure in betterment petitions as far as possible in harmony with that provided in eminent domain cases, and thus to introduce substantive changes which it was believed would prove advantageous. It is to be noted that the trial may be without jury; and the case may be tried with a petition for damages to the same land arising from the same public improvement.

Appeal to the County Commissioners

SECTION 10. A person who is aggrieved by the refusal of a board of officers of a city, town or district to abate an assessment may, instead of pursuing the remedy provided by section seven, appeal within the time limited therein to the county commissioners of the county in which the land assessed is situated, and the county commissioners shall hear the parties, and shall have the same powers and duties with respect to the abatement of such assessment as the board by which it was assessed, and may make an order as to costs. The decision of the county commissioners shall be final.

The right of appeal to county commissioners, which had previously existed in the case of sewer assessments, was included in the general betterment act of 1918, for the reason that in some sections of the state it is a more convenient remedy than an appeal to the court.

Contribution by Lessee

SECTION 11. If an assessment is made upon land the whole or part of which is leased, the owner shall pay the assessment, and may collect of the lessee an additional rent for the portion so leased equal to ten per cent per annum on that proportion of the amount paid

[G. L. c. 80, § 11 which the value of the leased portion bears to that of the whole estate, after deducting from the whole amount any money received for damages to such land in excess of what he has necessarily expended thereon by reason of such damages. A lessee aggrieved by the imposition of this burden may, within six months from the time demand is made upon him for such additional rent, file a petition in the superior court for the county in which the land is situated, to determine the proportion of the assessment which he ought to bear, and the proportion determined upon the petition shall be substituted for the proportion provided by this section. If such proportion is reduced the lessee shall recover costs from the owner; otherwise the owner shall recover costs from the lessee.

In the absence of special provision by statute or contract it is the duty of the lessor to pay a betterment assessment upon leased land, and if it is understood between the parties to a lease that such burdens are to fall upon the lessee it is well to have this point made clear by appropriate phraseology. When betterment assessments first became common frequent controversies arose between landlords and tenants whether a covenant by the latter to pay taxes and duties or other more or less synonymous expressions included betterment assessments. When the assessment was upon the owner and not upon the land the courts were not inclined to permit him to throw the burden upon the tenant if the language of the covenant left the matter open to doubt; but the courts have been very liberal in construing agreements by the lessee to pay taxes and similar impositions upon the demised premises so as to include betterment assessments levied on the land itself, even when the lease was made before there was any general statute in force authorizing the levying of such assessments.3

When a lessee has covenanted to pay assessments levied during the term of the lease, he is bound to pay such an assessment originally assessed during the term although it is revised

'Twycross v. Fitchburg R. R. Co., 10 Gray 293 (1858); Snow v. Rice, 207 Mass. 331 (1911).

2 Torrey v. Wallis, 3 Cush. 442 (1849); Twycross v. Fitchburg R. R. Co., 10 Gray 293 (1858).

In the following cases a covenant by the lessee to pay all taxes and assessments, or all taxes and duties, was held to include betterment assessments. Codman v. Johnson, 104 Mass. 491 (1870); Walker v. Whittemore, 112 Mass. 187 (1873); Curtis v. Pierce, 115 Mass. 186 (1874); Blake v. Baker, 115 Mass. 1888 (1874); Simonds v. Turner, 120 Mass. 328 (1876).

G. L. c. 80, §§ 11, 12]

and reduced after the expiration of the lease.* A covenant by the lessee to pay assessments runs with the land and may be enforced against an assignee of the lease who is in possession when an assessment is levied.5

6

In 1871 a statute which is in substance section eleven as appearing above was enacted. This statute did not, it was held, affect existing covenants, nor does it, it is to be supposed, prevent the making of special agreements between lessor and lessee to apportion betterments in a different manner. The statute, it will be noted, gives the, lessor no right to add to the lessee's rent until he has paid the assessment, and if he delays payment by contesting the amount of the assessment until after the lease expires, he has no right to charge the lessee with any portion of what he has finally paid.'

The statute as originally enacted applied only to betterments for highways, but in the general betterment act of 1918 it was extended to all betterment assessments. Under the original act the addition to the rent was imposed arbitrarily, without regard to the actual benefit to the tenant, and the statute was thus of doubtful constitutionality. This objection was removed by adding a provision authorizing the tenant to have the addition to his rent modified by the court to conform to the actual benefit to the tenant. Although this remedy will probably rarely be invoked, its existence will prevent injustice in some cases and removes all doubt as to the constitutionality of the statute.

Duration of Lien

SECTION 12. Assessments made under this chapter shall constitute a lien upon the land assessed. The lien shall take effect upon the recording of the order stating that betterments are to be assessed for the improvement, and shall continue for two years after the assessment is made, or, if an assessment has been apportioned, for two years after the last portion is payable, unless sooner paid. If the validity of an assessment made under this chapter is called in question in any legal proceeding to which the board which made the assessment 4 Blake v. Baker, 115 Mass. 188 (1874).

"Walker v. Whittemore, 112 Mass. 187 (1873); Curtis v. Pierce, 115 Mass. 186 (1874).

7 Snow v. Rice, 207 Mass. 331 (1911).