and shall also determine in what manner and at whose expense the improvements shall be kept in repair, shall estimate and award the damage sustained by and the benefit accruing to any person by reason of such improvements, and what proportion of the expense of making and keeping the same in repair shall be borne by the city or town and by the persons benefited thereby. The board shall forthwith give notice of its decision in the manner required in the preceding section, to the parties to whom notice is required to be given by section seventy-seven and to the assessors of said city or town. The expense of making and keeping such improvements in repair shall be assessed by the assessors upon the persons benefited thereby, as ascertained by said decision, shall be included in their taxes, shall be a lien upon the land benefited thereby and shall be collected in the same manner as other taxes upon land.

St. 1868, c. 160, § 5; P. S., c. 80, § 32.

APPLICATION FOR JURY.

Revised Laws, Chapter 75, Section 81.

Whoever is aggrieved by such decision in the award of damages or in the determination of benefits accrued or in the apportionment of the expense may, within three months after notice thereof, apply for a jury, 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 application for a jury shall otherwise be made in like manner and the proceedings thereon shall be the same as in case of land taken for laying out highways, except that at the trial the petitioner shall be confined to the objections specified in his notice.

St. 1887, c. 338, § 3.

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 hand1 or to the compulsory joint

1. See supra, § 24, and Goddard. Petitioner, 16 Pick. 504 (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); R. L., c. 75, §§ 67, 68, 69.

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 constitutional objection if construed as they may well be as not authorizing an assessment in excess of actual benefit.5

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.7

Special statutes authorizing the filling of certain low lands or the straightening and improving of watercourses have frequently pro

2. See supra, § 19, and Coomes v. Burt, 22 Pick. 422 (1839); Lowell v. Boston, 111 Mass. 454, 469 (1873); R. L., c. 195, §§ 1-16 inclusive.

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).

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

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

6. 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.

7. 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.

vided for assessing betterments therefrom, and some of the decisions. under such statutes are given in the notes.

175. Sewer Assessments in the City of Boston.

AMOUNT RE-ASSESSMENT — REVISION.

St. 1899, Chapter 450, Section 3.

The board of street commissioners of said city at any time within two years after any new sewer or drain for the collection or disposal of sewage or of surface or ground water is completed, shall assess upon the several estates especially benefited by such sewer or drain, a proportional part of the cost

8. Lawrence v. Webster, 167 Mass. 513 (1897). Contract, for an assessment of part of the expense of filling defendant's land to abate a nuisance. Notice was sent to defendant of a meeting at which he might be heard on the question of filling the land and assessing the owner. He did not attend the meeting. Held: if an attempt to agree is necessary, this is a sufficient attempt. An ordinary bill sent to defendant, nine days after the passage of the order, by mail, and duly received by him, is a good notice of the assessment and a sufficient compliance with the statute, that the notice shall be forthwith served.

Beals v. James, 173 Mass. 591 (1899). Petition for certiorari to quash an assessment made by the Brookline selectmen for cost of turning Smelt brook into a covered waterway. Held: under the power to improve and alter the brook, if they deem it the best manner, it may be covered and straightened. The benefit arising from the use of the drain for the removal of surface water is assessable. The amount of the benefit cannot be considered in certiorari: it must be in petition for abatement. If high lands, from which surface water would flow anyway are not assessed, it is unobjectionable. If petitioner received actual notice, he cannot complain that it was improperly served. Selectmen need not post notices of their intention to call a town meeting, if it is properly warned.

Quinn v. James, 174 Mass. 23 (1899). Petition for certiorari against the selectmen of Brookline to quash an assessment for covering a brook. Held: evidence that the old channel had been obstructed by persons other than the respondents since the construction of the new channel is rightly excluded as immaterial. The statement in a notice given to landowners by selectmen that they intend to assess a portion of the expense of an improvement upon the estates benefited, according to law, is a sufficient declaration that the action of the selectmen is taken under the provisions of law authorizing the assessment of betterments. It cannot be ruled, as matter of law, that the removal of a pool of water by an improvement made by a town would not of itself be a benefit to land near the water, but not abutting on it. The fact that a new channel of a brook laid out by a town is covered will not prevent the use of it by a landowner for the purpose of carrying off the surface water by entering a private drain connected with the main channel, and it is to be assumed that such connection will be allowed under proper restrictions and regulations.

thereof, not exceeding in amount the sum of four dollars per linear foot. Any such assessment which shall be found to be invalid and is unpaid, or which shall have been recovered back, may be re-assessed by said board to the amount for which and to the person to whom the original assessment ought to have been made. Every such re-assessment and every such original assessment shall be a lien upon the estate assessed or re-assessed for two years after such assessment or re-assessment, and shall be collected and paid into the city treasury in conformity with the provisions of sections sixteen and seventeen of chapter three hundred and twenty-three of the acts of the year eighteen hundred and ninety-one and acts in amendment thereof or in addition thereto. Said board may assess upon any estate heretofore or hereafter connected with a public sewer a reasonable part of the cost of construction thereof; provided, that no owner of the estate has paid for such sewer or has paid any assessment for its construction. Every such assessment may be revised and corrected by said board of street commissioners, and such assessments and revised and corrected assessments shall be subject to an appeal to the superior court in the manner provided for appeals from the board of assessors in the case of taxes, and they shall not be affected by the provisions of the statute requiring the filing of a list of estates liable to taxation as a prerequisite to an appeal.

St. 1892, c. 402, § 3; St. 1894, c. 256; St. 1897, c. 426, § 7; Con. St. City of Boston, c. 49, § 8.

ABATEMENT AND SUSPENSION.

St. 1896, Chapter 359.

The board of street commissioners of the city of Boston, in addition to any other authority conferred upon them to abate sewer assessments upon estates in said city, shall, with the approval of the mayor, have full power and authority, upon complaint of any person interested in the premises so assessed, to make such abatements or suspensions of the collection of assessments for the construction of sewers as they may deem just and proper, and may make the abatement upon the whole amount of the assessment at once, or upon the amount of any apportionment included in a tax bill or tax bills. Any such

assessment so abated or suspended shall continue a lien upon the estate on which the assessment is made until the same is paid.

Con. St. City of Boston, c. 49, § 12.

ASSESSMENT UPON EXEMPT LAND.

St. 1892, Chapter 402, Section 4.

When an assessment is made for a parcel of land for which the owner is by law exempt from being taxed, as determined and certified to by the assessors of said city on application to them therefor, the collector of taxes of said city shall suspend the collection of such assessment, but after the day on which the parcel ceases to be owned by a person or corporation so exempt, the amount of such assessment, shall be collected as if that day were the date of the passage of the aforesaid order for making the sewer.

Con. St. City of Boston, c. 49, § 13.

DIVISION OF ASSESSMENT.

St. 1895, Chapter 297.

The owner of any estate in the city of Boston on which an assessment has been made for the construction of any sewer in said city may pay a part of such assessment; and the board of street commissioners of said city may then, at their discretion, with the approval of the mayor, relieve a proportional part of said estate from further lien and liability for said assessment, and the remainder of said assessment shall continue to be a lien on the remaining part of said estate and be assessed and collected in the manner provided by law for the entire assessment so far as applicable.

Con. St. City of Boston, c. 49, § 14.

SURFACE DRAINAGE.

St. 1902, Chapter 526.

The expense of the construction and maintenance of sewers in the city of Boston designed for the disposal of surface drainage solely shall be borne wholly by the said city.

Con. St. City of Boston, c. 49, § 15.