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[G. L. c. 83, §§ 24, 26 selectmen or road commissioners determine, which may be fixed at the estimated average cost of all such particular sewers within the territory for which a system of sewers has been built or adopted. The board or officers authorized to lay out sewers shall assess the cost of connecting private land with a common sewer under section three upon the land so connected, and may require that an applicant for a connection of his land with a sewer shall pay in advance an amount equal to the estimated assessment therefor, which shall be applied to the payment of the assessment, and the remainder, if any, shall be repaid to the applicant.

Sidewalk Assessments

SECTION 26. In the order for the construction of a new sidewalk or the reconstruction of a sidewalk with material of more permanent character than that with which it was originally constructed, the board making the order may provide for the assessment of a reasonable amount, not exceeding one half the cost, upon the abutting estates. If an ordinance or by-law so provides, the total assessed upon any individual estate shall not exceed one per cent of the value thereof as fixed by the last preceding annual assessment for taxes.

The first legislation in this commonwealth in which sidewalk assessments were authorized consisted of special statutes granting power to levy such assessments to particular towns and cities. A number of such acts had been passed before the date of the earliest general law concerning sidewalks, and many such statutes have been enacted since that time, some of which are still in force. The earliest general law was enacted in 1855 and having been continued in force since then without material change constituted the first of the three alternative systems which were in force prior to the enactment of the General Laws. Under this system one-half the expense was assessed upon abutting lands with no provision that the walk should be afterward maintained at public expense or that previous assessments should be deducted; and this system to be in force required acceptance by the city or town. The second system, which also required acceptance, provided for an assessment of one-half the expense not exceeding one per cent of the value of an estate, and if the walk was constructed of permanent materials any sum previously paid was to be deducted from the assessment and the walk

G. L. c. 83, § 26]

thereafter maintained at the public expense. This system originated in 1872 with an amendment in 1874. The third system is the same as the second except that the limit of one per cent of the value of the estate is lacking and there is no requirement that the statute be accepted; and it is applicable only to cities. This system was established in 1895; and it was held that it did not supersede special provisions contained in the various city charters or the alternative systems of the existing general laws, although it came in force as an optional method in cities which had no special provisions whether they had accepted the other systems or not.

When the preparation of the General Laws was in process, the commissioners deemed the existing provisions as to sidewalk assessments unsatisfactory because there was no provision for revocation of acceptance, and if a city or town accepted a later act and it proved unsatisfactory it had no power to go back to an earlier, and because it was often a difficult matter for a person whose land was assessed to determine under which system the assessment had been made.1 Accordingly a single uniform system was substituted for the conflicting and confusing provisions which had previously been in force. Charter provisions and special acts relative to sidewalk assessments are not superseded by the provisions of the General Laws; the section of the chapter on betterments which provides that betterments shall be assessed only under that chapter has no application to sidewalk assessments.2

In addition to the power to establish sidewalks by authority of the statute now under consideration, a city or town may lay sidewalks under its general power to make specific repairs on public ways, and the order of the aldermen (or selectmen or road commissioners) establishing a sidewalk must contain a statement that in their judgment the public convenience requires its establishment3 to justify an assessment under section twenty-six. Ordinarily the laying of curbing is included in and is part of the construction of a sidewalk; but if in any in

1 See Preliminary Report of Commissioners, p. 220.

2 For the method of levying sidewalk assessments in force in Boston see infra, page 722; for the special provisions as to other cities see Copeland v. Springfield, 166 Mass. 498 (1896).

As provided in G. L. c. 83, §25.

4 Borden v. Brockton, 208 Mass. 348 (1911).

[G. L. c. 83, § 26 stance curbing is necessary in order that the street may be safe and convenient, and the aldermen omit or neglect to order the curbing to be laid, the mayor may direct the superintendent of streets to lay it, as "ordinary repairs" necessary to make the way reasonably safe and convenient."

It has been held that if an assessment is too large in exceeding one per cent of the assessed value the assessment is void. only to the extent of the illegal excess and a sale for non-payment of such an assessment is not void."

In passing upon assessments under special charter provisions the courts have been inclined to treat the performance of requirements made for the protection of the persons assessed as a condition precedent to the validity of the assessment,' but to treat other requirements as merely directory.8

Sidewalk Assessments in the City of Boston

The first statute authorizing sidewalk assessments in Boston was enacted in 1799 and provided that when the cartway in any public street was paved, the owner of each abutting lot should at his own expense cause the footway in front of his estate to be paved with bricks or flat stones and kept in repair, and if he failed in this duty the surveyors of highways might perform it and recover of the owner the expense. In 1831 this provision was extended to macademized ways and in 1833 provision was made for the acceptance of sidewalks by the city after they had been put in repair by the abutters and relinquished to the city; after such relinquishment and acceptance they were to be maintained at the expense of the city.

In 1872 a general statute applicable to all cities which should accept the same was enacted and was accepted by the city of Boston on May 21, 1872. This is the second system of sidewalk assessments as it stood before the enactment of the General Laws without the limitation of one per cent of the valuation,

5 Draper v. Mayor of Fall River, 185 Mass. 142 (1904). Lynde v. Malden, 166 Mass. 244 (1896).

7 Lowell v. Wentworth, 6 Cush. 221 (1850); Lowell v. French, 6 Cush, 223 (1850); Lowell v. Wheelock, 11 Cush. 391 (1853); Charlestown v. Stone, 15 Gray 40 (1860); Tufts v. Charlestown, 98 Mass. 583 (1868); Arnold v. Cambridge, 106 Mass. 352 (1871).

8 Lowell v. Hadley, 8 Met. 180 (1844); Dickinson v. Worcester, 138 Mass. 555 (1885); Browne v. Boston, 166 Mass. 229 (1896).

G. L. c. 83, § 26]

which was added in 1874 and never accepted by the city of Boston. In 1892 a special statute relating only to Boston was enacted providing for the assessment of the whole cost of making sidewalks upon the abutters in proportion to frontage without reference to actual benefit and without right of appeal. This statute, in view of later decisions, was probably unconstitutional. Up to 1893 there had been no general repeal of inconsistent provisions or reference to anything but sidewalks thereafter built, so that with regard to existing sidewalks the duty to maintain depended upon the time when they were constructed and the section of the city in which they were situated, for there had been special enactments in regard to sidewalks in some of the cities and towns subsequently annexed to Boston which so far as the duty to maintain was concerned were apparently still in force. In 1893 another special statute was enacted, which re-. pealed in terms all acts inconsistent therewith and provided for the assessment of not more than one-half the cost of construction in just proportions and the maintenance of the sidewalks at the expense of the city. This statute was substantially the same as that in force between 1872 and 1892 and was the equivalent of the third system as it stood before the enactment of the General Laws, or the second as it was prior to the amendment of 1874.1 The board of aldermen was abolished and its powers transferred to the city council in 1909 so that sidewalk assessments in Boston are now laid by this body."

3

In 1916 another special statute was enacted which was superseded in the following year by the statute now in force. The present statute provides in substance that the city council, with the approval of the mayor, may grade, construct or complete sidewalks with or without edgestones and cover them with suitable material, and, if entry for the purpose of construction. is made within two years of the order, may assess upon each abutter a just proportion, not exceeding one-half, of the expense of the sidewalk. Every assessment is a lien from the date of entry; is payable within thirty days and if not paid is apportioned into not less than five instalments, one of which is added

'See generally on the history of legislation concerning sidewalks in Boston, Attorney General v. Boston, 142 Mass. 200 (1886); Copeland v. Springfield, 166 Mass. 498 (1896).

* St. 1909, c. 486, §1.
a Sp. Acts 1917, c. 196.

[G. L. c. 83, §§ 26, 27 to each annual tax bill upon the estate until the whole is paid. When sidewalks are constructed with edgestone and covered with brick, stone, concrete or artificial stone, they are afterward maintained by the city, and the amount of any assessment previously paid for construction with less durable material is deducted from the assessment levied for the permanent sidewalk. A sidewalk assessment, like any other special assessment, cannot lawfully exceed the increase in market value on each estate assessed due to the improvement; and an assessment cannot be levied upon property devoted to a public use which can derive no benefit from the sidewalk.*

When a sidewalk is constructed as part of a new street, the cost of the sidewalk is included in the cost of the street and assessed under the street betterment laws, and it is only when a sidewalk is newly built in an existing street that the sidewalk assessment laws come into play.

There is an old statute which is generally considered to be in force respecting the construction of sidewalks in streets which have not been laid out as public ways but which have been opened or dedicated to public use by the owners, or permitted by the owners to be used by the public. This statute is of very doubtful constitutionality as it appears to authorize taxation for a use not public. It cannot be sustained as an exercise of the police power because it is not limited in its application to ways that are unsafe. There is moreover some doubt whether it has not been repealed."

5

Lien for Sewer and Sidewalk Assessments

SECTION 27, (as amended by St. 1921, chapter 486, section 20.) Whenever the aldermen of a city or the sewer commissioners, selectmen or road commissioners of a town lay out or determine to construct a sewér or drain in a public way, or in a way opened or dedicated to the public use which has not become a public way, or adopt an order for the establishment or reconstruction of a sidewalk for such a way, and assessments may be made or charges imposed under this chapter for the construction of such improvement or the use thereof, they shall forthwith cause to be recorded in the registry Boston v. Boston & Albany R. R. Co., 170 Mass, 95 (1898). Morse v. Stocker, 1 Allen 150 (1861).

Nute v. Boston Co-operative Building Co., 149 Mass. 465 (1889).

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