G. L. c. 83, § 15] should be construed as authorizing only assessments proportional to and not in excess of the actual benefit and that thus construed it was constitutional.3 If, in any particular instance, the assessment is greater than the increase in the fair market value of the land resulting from the establishment of the sewer, the owner of the land will be entitled to an abatement.* The assessments under this statute are not limited to persons who enter their drains into the sewer or who by more remote means receive benefit thereby, but are made upon owners of estates within the sewerage territory according to fixed uniform rates; excepting such lands as will never use the sewer, either from natural causes or by reason of their perpetual devotion by authority of statute to a use for which drainage is unnecessary." An assessment may be levied under this statute upon lands abutting upon a street in which a sewer has been constructed after the statute was enacted but before the town in which the sewer lies has accepted the statute, for the liability to an assessment is an encumbrance upon the abutting estates when the sewer is laid out, although its amount cannot then be ascertained. It is a liability to an assessment in any manner which may be lawfully adopted. An assessment under an ordinance providing that assessments shall be by uniform rates based on the cost of all sewers according to frontage on any street in which there is a public sewer and to area within a fixed depth from such street and fixing such rates is levied under this section and leaves no question as to the amount of land covered by the assessment." An assessment can be levied under this section for a sewer constructed by private parties in a private way and acquired by the town when the way was laid out as a public way, for the such redraft might involve questions of expediency as well as of constitutional limitation, it is not considered to be within the province of the commission." 3 Cheney v. Beverly, 188 Mass. 81 (1905); Hester v. Collector of Brockton, 217 Mass. 422 (1914). And see also O'Connell v. First Parish in Malden, 204 Mass. 118 (1910). The provision for application for abatement now contained in section 5 of chapter 80 applies to an assessment under section 16. Taylor v. Mayor and Aldermen of Haverhill, 192 Mass. 287 (1906); Driscoll v. Northbridge, 210 Mass. 151 (1911). 'Driscoll v. Northbridge, 210 Mass. 151 (1911). "Leominster v. Conant, 139 Mass. 384 (1885). Mount Auburn Cemetery v. Cambridge, 150 Mass. 12 (1889). 'Leominster v. Conant, 139 Mass. 384 (1885). Taylor v. Mayor and Aldermen of Haverhill, 192 Mass. 287 (1906). [G. L. c. 83, §§ 15, 16 assessment is not affected in any way by the cost of the sewer in the street upon which the land abuts." It is not necessary that notice of a sewer assessment under this section be given before it was levied, if notice was given after it was levied.10 The imposition of sewer assessments at a fixed uniform rate under the foregoing section proved satisfactory until by reason of the increase in cost of labor and materials during the war with Germany the previously established rates failed to produce the proportion of the cost of sewers which it was desired to assess upon the abutting property and the additional burden was thrown upon the general taxpayers. As the statute contains no provision for the modification of the rate after it has once been established, in some instances it became necessary for cities and towns to secure special authority from the legislature for the modification of their rates. Annual Charges for the Use of Sewers SECTION 16. The aldermen of any city except Boston or the sewer commissioners, selectmen or road commissioners of a town, may from time to time establish just and equitable annual charges for the use of common sewers, which shall be paid by every person who enters his particular sewer therein. The money so received may be applied to the payment of the cost of maintenance and repairs of such sewers or of any debt contracted for sewer purposes. The statute authorizing the establishment of annual charges for the use of sewers when first enacted in 1892 provided that the charges should be established by the city council of a city or by a town, but when the Revised Laws were prepared in 1902 the statute was changed with respect to the officers who might establish the charges so as to be more in harmony with the other provisions of law relative to the control of sewers. It was held that an assessment under this statute based principally upon the water used upon the estate could be constitutionally levied even upon an estate which had been assessed for the construction of the sewer. An assessment for the construction of the sewer does not forever bind the city to main'Slocum v. Brookline, 163 Mass. 23 (1895). 10 Smith v. Abington Savings Bank, 171 Mass. 178 (1898). G. L. c. 83, §§ 16-18] tain the sewer free of charge, and the maintenance of the sewer is a special benefit. The assessment is limited to those who actually use the sewer and to be "equitable" within the meaning of the statute must be proportional to the benefit and not in excess of it. The owner assessed has no right to a jury trial and when a uniform and self-adjusting rate is adopted under which no question as to proportion can arise or any other question except the general one whether the rate is high, the local authorities may be authorized to determine that question.1 Payment for Permanent Privilege of Using Sewers SECTION 17. The aldermen of any city except Boston or a town in which main drains or common sewers are laid may determine that a person who uses such main drains or common sewers in any manner, instead of paying an assessment under section fourteen, shall pay for the permanent privilege of his estate such reasonable amount as the aldermen or the sewer commissioners, selectmen or road commissioners shall determine. When an ordinance provides that sewer assessments shall be by fixed uniform rates based upon the cost of all sewers therein according to frontage and area within a fixed depth, it sufficiently appears that the ordinance is enacted under section fifteen and not under section seventeen.1 A person aggrieved by the determination of the amount to be paid under this section is entitled to apply for an abatement. The statute formerly expressly so provided, and the provision was omitted merely because the general provisions of section twenty-eight established the remedy for abatement in the case of all forms of sewer assessments.2 Determination of Method of Assessment SECTION 18. The city council of a city or a town which itself is, or the officers of which are, entitled, under sections fourteen to seventeen, inclusive, or under any special act, to assess upon land the whole 1 Carson v. Sewerage Commissioners of Brockton, 175 Mass. 242 (1900), affirmed, 182 U. S. 398 (1901). In this case the ordinance charged for unmetered water service eight dollars and for metered water service thirty cents per thousand gallons of sewage with a minimum charge of eight dollars. 1 Taylor v. Mayor and Aldermen of Haverhill, 192 Mass. 287 (1906). * St. 1918, c. 257, §212, and see Preliminary Report of Commissioners to Consolidate the General Laws, p. 217. [G. L. c. 83, §§ 18-21 or a part of the cost of laying, making, maintaining or repairing main drains or common sewers, may determine that such assessments shall be made by two or more of the methods provided in said sections or special acts, and may determine what part of the expense or estimated average cost shall be paid under each method. In addition to the methods of levying sewer assessments provided by chapter eighty-three, if a city or town lays a sewer through private land, it may take the necessary easement under the general provisions of chapter seventy-nine, and levy betterment assessments under chapter eighty. Extension of Time for Payment SECTION 19. The aldermen of a city or the sewer commissioners, selectmen or road commissioners of a town may extend the time for the payment of such assessments upon land which is not built upon until it is built upon or for a fixed time; but interest at a rate not less than the town pays upon any loan for sewer purposes shall be paid annually upon the assessment from the time it was made, and the assessment shall be paid within three months after such land is built upon or at the expiration of such fixed time. The provisions of this section do not authorize a sewer assessment in excess of the present enhancement of the market value of the land assessed resulting from the construction of the sewer, but recognize that the potentiality of sewerage may increase the market value even of vacant land, although it may be a hardship to the owner to pay the assessment before the land is capable of returning an income.1 Fee for the Use of Sewers SECTION 20. The owners of land or parts thereof not liable to assessment, or not in fact assessed, may use the common sewers for the disposal of their sewage from such land only on payment of such reasonable amount as the aldermen or the sewer commissioners, selectmen or road commissioners shall determine. Land Abutting Upon More Than One Way SECTION 21. If land abuts upon more than one way, assessments for sewers based wholly or in part upon frontage shall be assessed 'Driscoll v. Northbridge, 210 Mass. 151 (1911). G. L. c. 83, §§ 21-24] upon the frontage upon one such way and upon so much of the frontage upon such other way as is not exempted by the board whose duty it is to make the assessment; and such board may exempt from assessment so much of the frontage upon such other way as they consider just and equitable. When a sewer runs on two sides of a parcel of land of moderate size, if the assessment is by frontage, such a parcel is doubly assessed, and a statute which made no allowance for such a situation would be unconstitutional.1 Sewers Built by Land Owners SECTION 22. If an ordinance or by-law provides that any drain or sewer laid in any land or way, public or private, which is opened or proposed to be opened for public travel and accommodation shall be a main drain or common sewer, and such drain or sewer is laid in a private way or land at the expense of the owner thereof, his land shall not be assessed for such drain or sewer, except for the cost of connecting it with common drains or sewers already established. Payment of Part of Cost by the City or Town SECTION 23. This chapter shall not prevent a town from providing, by ordinance or otherwise, that a part of the expense of laying out, constructing, maintaining and repairing main drains or common sewers shall be paid by such town; and any city except Boston and any town adopting a system of sewerage which had not, prior to May sixth, eighteen hundred and ninety-two, actually levied assessments for the cost of such system shall pay such portion, not less than one quarter nor more than two thirds, of the cost of laying out, constructing, maintaining and repairing the common sewers as the city council or the sewer commissioners, selectmen or road commissioners may determine. Assessment for Particular Sewers SECTION 24. The owner of any land benefited by the laying out of a particular sewer from the common sewer to the boundary of the way shall pay to the town for the permanent privilege of using the same such reasonable amount as the aldermen or the sewer commissioners, 'Dexter v. Boston, 176 Mass. 247, 252 (1900). |