CHAPTER 82 THE LAYING OUT AND RELOCATION OF PUBLIC WAYS Assessment of Cost of Relocation SECTION 11. If application is made to the commissioners by a town, or by five inhabitants thereof, to relocate or order specific repairs on a way within such town, whether it was laid out by authority of the town or otherwise, they may, either for the purpose of establishing the boundary lines of such way or of making alterations in the course or width thereof, or of making specific repairs thereon, relocate it in the manner prescribed for laying out highways in sections two to nine, inclusive. The expense shall be assessed upon the petitioners or upon the county or town, or upon the land benefited by the improvement under chapter eighty, as the commissioners may order. The commissioners may, without petition, after giving notice as provided in section three, relocate any public way for the purpose of establishing its boundaries, or of making specific repairs thereon, in which case no part of the expense shall be assessed upon the town. In spite of rather broad language in the statute giving power to county commissioners to act under the highway betterment act, it was intimated by the court that county commissioners could not relocate a highway under the betterment act, at least in towns which had not accepted the act;' but under the present statute, which was modified to conform to the general betterment act of 1918, it is clear that county commissioners may assess betterments for the relocation of a highway in any part of the state. The county commissioners have long had the power to assess all or part of the expense of a relocation upon the persons who petitioned for the relocation, and while such an assess 'Watertown v. Middlesex County Commissioners, 176 Mass. 22, 28, 32 (1900); Bennett v. Wellesley, 189 Mass. 308, 317 (dissenting opinion of Knowlton, C. J.) (1905). 2 By St. 1835, c. 152, §8, the county commissioners could locate anew a road only upon the application of the town, and the town was required to pay [G. L. c. 82, §§ 11, 12 ment would not in most instances be levied in accordance with the limitations imposed by the constitution in respect to betterment assessments, the persons who petitioned for a relocation while such a statute was in force would not be in a position to contend that a burden thus voluntarily incurred by them was not constitutional. As an alternative, the county commissioners may determine that the county shall pay the expense of a relocation, or they may impose it upon the cities or towns, or assess it directly upon the land benefited, in accordance with the provisions of the chapter on betterments. If the cost is imposed upon a city or town, the city or town cannot assess the sum it is thus obliged to pay upon the land benefited, but must raise it out of the general tax levy, as it was evidently the intention of the legislature that the order of the county commissioners should constitute a final determination of the whole subject of the payment of the expenses.3 Assessment of Cost of Laying Out, Alteration, Repair or Discontinuance SECTION 12. When a highway has been finally laid out, altered, relocated or discontinued, or when specific repairs are ordered on an existing highway by the county commissioners, the county shall be primarily liable for all damages thereby caused, or for all amounts awarded or assessed as indemnity. The commissioners shall determine what proportion if any of the expenses of the proceedings, cost of construction, damages and indemnity shall be assessed upon the land benefited under chapter eighty and whether the remainder, if any, shall be borne by the county, or by the towns in which the parts of the highway are respectively located. The commissioners shall notify each such town of any balance due from such town to the county under this section and may enforce payment as provided in section fifteen. all the expenses. So in R. S., c. 24, §9. By St. 1851, c. 214, the commissioners were authorized to locate anew a road within any town upon the application of any five inhabitants of the town, in which case the persons making the application were required to pay all the expenses. By G. L. c. 43, §12, it was provided that the expense should be assessed upon the petitioners for the relocation or upon the town or county as the commissioners might order, and by St. 1873, c. 165, the further amendment was made by which the commissioners might assess the expenses in whole or in part upon the abutters. Tufts v. Mayor and Aldermen of Somerville, 122 Mass. 273 (1877). G. L. c. 82, §§ 12, 24, 26] It was held in 1871 that under the provisions of statute as they then existed county commissioners had no authority to institute proceedings under the betterment acts in any city to be conducted under those acts either by themselves or by the city council or other board of a city in compliance with their order; but in 1887 they were given such power over highways within a city, or within a town which had accepted the betterment act. The statute seemed to contemplate that the actual assessment of the betterments would be made by the local authorities. The general betterment act of 1918 however gave the county commissioners power to assess betterments themselves directly, and in any part of the state.2 The repairs for which betterments may be levied are "specific repairs" such as changing the grade, or resurfacing, and there is no authority for levying betterments for "ordinary repairs," made by the administrative officers in charge of the repair of highways without a formal vote or order of a board of officers of a county, city or town.3 Assessment of the Cost of Private Ways SECTION 24. . . . If a private way is laid out, relocated, altered or discontinued by a town, or if a town makes specific repairs thereon, or if a town way is discontinued, the persons upon whose application such way is laid out, relocated, altered or discontinued or upon whose application specific repairs are made thereon shall, before such way is entered upon for the purposes of construction, or is closed up, give such town security satisfactory to the selectmen that they will indemnify such town for all damages and charges which it is obliged to pay by reason thereof, and all such damages and charges shall be repaid to the town by the persons making such application; provided, however, that in case of the discontinuance of a town way the selectmen may order a part of the damages to be paid by the town. SECTION 26. . . . If it is a private way, the damages and costs, or such part thereof as the county commissioners consider reasonable, shall be repaid to the town by the persons for whose use it was laid out, relocated or altered, and security for such payment, satisfactory to the county commissioners, shall be given to the town by such 'Chase v. Worcester, 108 Mass. 60 (1871). 2 G. L. c. 80, §1, supra, page 669. 3 Hitchcock v. Aldermen of Springfield, 121 Mass. 382 (1876). [G. L. c. 82, § 26 persons before the way is entered upon for the purpose of constructing or altering the same. The private ways referred to in these statutes are really public ways laid out and constructed by public authority and which the public may lawfully use to the same extent as public highways and are private only in that the land damages are paid by the persons benefited by the laying out. An assessment could not constitutionally be levied for the construction of a purely private way. It is to be noted that the land damages are to be paid by the persons for whose use or benefit the way is laid out and without limitation to actual benefit. These statutes have stood in much the present form since long before the constitution was adopted and would probably not now be held unconstitutional. The statutes may well be construed as authorizing the assessment only upon those who petition for the way and thus waive any right to object to the constitutionality of the statutes. 'Denham v. Bristol County Commissioners, 108 Mass. 202 (1871). Morse v. Stocker, 1 Allen 150 (1861). CHAPTER 83 SEWERS, DRAINS AND SIDEWALKS Sewer Assessments SECTION 14. A person who enters his particular drain into a main drain or common sewer, or who by more remote means receives benefit thereby for draining his land or buildings, shall pay to the town a proportional part of the charge of making and repairing the same, and of the charge, not already assessed, of making and repairing other main drains and common sewers through which the same discharges, which shall be ascertained, assessed and certified by the aldermen, sewer commissioners, selectmen or road commissioners. This section has stood since its original enactment in 1841 without material change except for the insertion in 1878 of the clause including the cost of other sewers through which the sewer for which the assessment is levied discharges. The constitutional principles already set forth' apply to assessments under this statute and an assessment in excess of the actual benefit cannot be sustained; but in the absence of evidence that actual injustice is done there is no objection to apportioning the assessment according to some more or less arbitrary rule. The assessment, if made in proportion to value, should be made according to the value of the land exclusive of buildings, and should not depend upon the immediate necessities for drainage but according to the opportunity for drainage when the owner may require it.* 3 If a sewer built to drain a certain district carries off the drainage of districts situated above, it would be reasonable that 2 Weed v. Boston, 172 Mass. 28 (1898); Dexter v. Boston, 176 Mass. 247 (1900); Hall v. Street Commissioners of Boston, 177 Mass. 434 (1901); Smith v. Mayor and Aldermen of Worcester, 182 Mass. 232 (1902); Cheney v. Beverly, 188 Mass. 81 (1905); O'Connell v. First Parish in Malden, 204 Mass. 118 (1910). Boston v. Shaw, 1 Met. 130 (1840); Wright v. Boston, 9 Cush. 223 (1852); Springfield v. Gay, 12 Allen 612 (1866); Brewer v. Springfield, 97 Mass. 152 (1867). Downer v. Boston, 7 Cush. 277 (1851); Springfield v. Gay, 12 Allen 612 (1866); Snow v. Fitchburg, 136 Mass. 183 (1883). |