[G. L. c. 111, §§ 138-140 chapter eighty, first giving one month's notice in writing to the mayor and aldermen or selectmen of his intention so to do, and particularly specifying therein his objections to said decision. Such petition shall otherwise be made in like manner and the proceedings thereon shall be the same as in case of land taken or betterments assessed under said chapters, respectively.

SECTION 139. The board shall, within thirty days after the abatement of such nuisance, make return of its doings to the town clerk, who shall record them in the town records.

SECTION 140. If the board unreasonably refuses or neglects to proceed in the matter of said petition, the petitioner may apply to the superior court, which, upon a hearing and for good cause shown, may appoint three commissioners, who shall proceed in the manner provided in sections one hundred and thirty-three to one hundred and thirty-nine, inclusive.

THE foregoing statutes were first enacted in 1868 and are intended to deal with a different condition than a nuisance upon the land of a single individual which he can be compelled under the police power to abate at his own expense on the one hand,1 or to the compulsory joint drainage of swamps and meadows in which several persons have a common interest effected under the police power for their common benefit on the other. These statutes provide, in a sense, for a public improvement and authorize the taking of land by eminent domain and the assessment of betterments under the power of taxation, with all the constitutional safeguards to which each of these powers is respectively subject. In this respect these statutes resemble many special acts which had previously been passed and had been held constitutional and are themselves not open to constitu

1See supra, Part I, §71; and Goddard, Petitioner, 16 Pick, 503 (1835); Salem v. Eastern R. R. Co., 98 Mass. 431 (1868); Cambridge v. Munroe, 126 Mass. 496, 502 (1879); Nickerson v. Boston, 131 Mass. 306 (1881); G. L. c. 111, §§123, 124, 125.

See supra, Part I, §66, and Coomes v. Burt, 22 Pick. 422 (1839); Lowell v. Boston, 111 Mass. 454, 469 (1873); G. L. c. 252, §§1-14, inc.

3

Grace v. Newton Board of Health, 135 Mass. 490 (1883). Under this statute a nuisance consisting of large quantities of stagnant water standing in an open drain may be dealt with, Grace v. Newton Board of Health, 135 Mass. 490 (1883), but not the open end of a house sewer built in a private way and emptying upon private land, Huse v. Amesbury Board of Health, 163 Mass. 240 (1895).

* Dingley v. Boston, 100 Mass. 544 (1868); Bancroft v. Cambridge, 126 Mass. 438 (1879).

[G. L. c. 111, § 140

tional objection if construed as they may well be as not authorizing an assessment in excess of actual benefit."

To sustain an assessment under these statutes it is an absolute prerequisite that the owner of lands assessed be given the notice required by the statutes in the manner therein prescribed, and actual knowledge is not sufficient. Moreover the notice is the basis of the assessment and if an improvement is eventually made more extensive than described in the notice an assessment cannot be levied for the excess."

The requirement that an abatement shall not be made without a previous appropriation if the cost exceeds two thousand dollars cannot be evaded by dividing up the abatement of a single nuisance; but it does not prohibit the abatement of several separate nuisances at the same time without an appropriation although the aggregate cost exceeds two thousand dollars.

Special statutes authorizing the filling of certain low lands or the straightening and improving of watercourses have frequently provided for assessing betterments for the benefits derived therefrom and some of the decisions under such statutes are set forth in the notes."

Grace v. Newton Board of Health, 135 Mass. 490 (1883).

Watuppa Reservoir Co. v. Mackenzie, 132 Mass. 71 (1882); Grace v. Newton Board of Health, 135 Mass. 490 (1883); Hall v. Staples, 166 Mass. 399 (1896). In the last named case it was held that a person assessed could on petition for writ of certiorari contradict the record of the board by parol evidence that notice was not in fact served upon him; and that he was not barred by laches in having stood by without objection until the work was completed.

'Grace v. Newton Board of Health, 135 Mass. 490 (1883). In this case it was also held that (1) the board of health may act by committee in abating the nuisance, (2) a new notice of its intention to make the assessment need not be given after the hearing, (3) if any assessments were not sufficiently specific by reason of the want of description of the real estate benefited, it was competent for the board of health to extend or amend its record.

United States Drainage, etc., Co. v. Medford, 225 Mass. 467 (1917). In the same case it was held that a contract for the drainage of wet lands executed by the board of health of a city was void if it did not have the written approval of the mayor, as required by the city charter.

In Lawrence v. Webster, 167 Mass. 513 (1897), it was held that an ordinary bill sent to an owner by mail was sufficient compliance with a statutory requirement that notice of the assessment should be served forthwith. In Beals v. James, 173 Mass. 591 (1899), it was held that if an owner received actual notice, he could not complain that it was improperly served. In Quinn v. James, 174 Mass. 23 (1899), it was held that notice to the owners that the selectmen intended to assess a portion of the expense upon the estates benefited, according to law, is a sufficient notice that they intended to act under the law authorizing the assessment of betterments; also that land may be assessed for the benefit from the removal of a stagnant pool even if it does not abut on the pool.

CHAPTER 132

FORESTRY

Assessment for the Extermination of Insect Pests

SECTION 18. The mayor of every city and the selectmen of every town shall, on or before November first in each year, and at such other times as he or they shall see fit or as the forester may order, cause a notice to be sent to the owner, so far as can be ascertained, of every parcel of land therein which is infested with said moths; or, if such notification appears to be impracticable, by posting such notice on said parcels of land, requiring that the eggs, caterpillars, pupae and nests of said moths shall be destroyed within a time specified therein. The publication of the notice in newspapers published or circulated in the city or town at least three times during the month of October shall be deemed a compliance with the law, if in the opinion of the mayor or selectmen such publication will be a sufficient. notice.

When, in the opinion of the mayor or selectmen, the cost of destroying such eggs, caterpillars, pupae or nests on land contiguous and held under one ownership in a city or town shall exceed one half of one per cent of the assessed value thereof, a part of said premises on which said eggs, caterpillars, pupae or nests shall be destroyed may be designated in such notice, and such requirement shall not apply to the remainder of said premises. The mayor or selectmen may designate the manner in which such work shall be done, but all work done under this section shall be subject to the approval of the forester.

If the owner shall fail to destroy such eggs, caterpillars, pupae or nests as required by said notice, the city or town, acting by the local superintendent appointed under section thirteen, shall, subject to the approval of the said forester, destroy the same, and the amount actually expended thereon, not exceeding one half of one per cent of the assessed valuation of said lands, as heretofore specified in this section, shall be assessed upon the said lands; and such an amount in

G. L. c. 132, §§ 18-20]

addition as shall be required shall be apportioned between the city or town and the commonwealth in accordance with section fourteen. The amounts to be assessed upon private estates as herein provided shall be assessed and collected, and shall be a lien on said estates, in the same manner and with the same effect as in the case of assessments for street watering.

SECTION 19. If, in the opinion of the assessors of a city or town, any land therein has received, by reason of the abatement of said. nuisances thereon by said forester or by said city or town, a special benefit beyond the general advantage to all land in the city or town, then the said assessors shall determine the value of such special benefit and shall assess the amount thereof upon said land; provided, that no such assessment on lands contiguous and held under one ownership shall exceed one half of one per cent of the assessed valuation of said lands; and provided, that the owner or owners shall have deducted from such assessment the amount paid and expended by them during the twelve months last preceding the date of such assessment toward abating the said nuisances on said lands, if, in the opinion of the assessors, such amount has been expended in good faith. Such assessment shall be a lien upon the land for three years from the first day of January next after the assessment has been made, and shall be collected under a warrant of the assessors to the collector of taxes of such city or town, in the manner and upon the terms and conditions and in the exercise of the powers and duties, so far as they may be applicable, prescribed by chapter sixty, and real estate sold under such warrant shall be subject to the provisions of said chapter relative to land sold for taxes.

SECTION 20. A person aggrieved by such assessment may appeal to the superior court for the county where the land lies, by entering a complaint in said court within thirty days after he has had actual notice of the assessment, which complaint shall be determined as other causes by the court without a jury. The complaint shall be heard at the first sitting of said court for trials without a jury after its entry; but the court may allow further time, or may advance the case for speedy trial, or may appoint an auditor as in other cases. The court may revise the assessment, may allow the recovery of an amount wrongfully assessed which has been paid, may set aside, in a suit begun within three years from the date thereof, a collector's sale made under an erroneous assessment, may award costs to either party, and may render such judgment as justice and equity require.

[G. L. c. 132, §§ 21-26 inc. SECTION 21. If, in the opinion of the assessors, the owner of an estate upon which an assessment has been made is, by reason of age, infirmity or poverty, unable to pay the assessment, they may upon application abate the same.

SECTION 22. A person aggrieved by the taxes assessed upon him for the suppression of gypsy and brown tail moths, pursuant to section eighteen or nineteen, may, within six months after the date of the first tax bill issued on account of the taxes complained of, apply to the assessors for the abatement thereof, who may make such abatement as they deem reasonable.

SECTION 23. The assessors shall not abate a tax under the preceding section except upon the written recommendation of the local superintendent who certified the assessment in question to the assessors or provided them with the information as to the work performed, upon which such tax was assessed, unless the error or excess complained of originated in the work of the assessors who laid the tax.

SECTION 24. The assessors shall keep a record of all such taxes abated and shall preserve for three years all written recommendations received under the preceding section. They shall furnish the collector of taxes with a certificate of each abatement, which shall relieve him from the collection of the sum abated.

SECTION 25. The city forester, superintendent or other person having charge of the suppression of gypsy and brown tail moths in each city and town in the commonwealth, or, where there is no such person, the tree warden may destroy within the limits of his city or town the tent caterpillar, leopard moth and elm beetle or any other tree or shrub destroying pest, if authorized so to do by the mayor and city council or by the selectmen in towns.

SECTION 26. The city forester or other officer designated in the preceding section may enter upon private land, and the owners of private land may be taxed for work done under said section as provided by sections eighteen and nineteen; provided, however, that nothing contained in this section shall require the commonwealth to pay any part of any such expense other than for the suppression of the gypsy and brown tail moths, that no land shall be assessed hereunder which has been assessed the maximum amount provided by said sections eighteen and nineteen for the suppression of the gypsy and brown tail moths, and that the aggregate assessment on any parcel of private land for the suppression of the tent caterpillar,