TAYLOR v. MAYOR, C. OF HAVERHILL

Tax, Sewer assessments. Sewer. Municipal Corporations. Haverhill. Where an ordinance of a city other than Boston provides that sewer assessments within the territory of its sewer system "shall be by fixed, uniform rates based upon the estimated cost of all sewers therein, both according to the frontage of such estates on any street or way where a public sewer is constructed and according to the area of such estates within a fixed depth of one hundred and fifty feet from such street or way," and establishes such rates, if the mayor and aldermen of the city make a sewer assessment under this ordinance it is made under the authority conferred by § 5 of c. 49 of the Revised Laws and not under § 7 of that chapter, and there can be no question as to the portion of the land covered by the assessment, as it must cover the entire frontage on the street and extend back one hundred and fifty feet and no more.

R.L.c. 49, § 4, giving a right to revision by a jury to persons aggrieved by a sewer assessment imposed by the mayor and aldermen of a city or the sewer commissioners, selectmen or road commissioners of a town, applies to an assessment made by the mayor and aldermen of a city under an ordinance authorized by the provisions of § 5 of the same chapter, and also applies to an assessment made by the mayor and aldermen of a city under § 3 of the same chapter for benefits received from the construction of a sewer running through private lands and not in any street or way.

The mayor and aldermen of a city under R.L.c. 49, § 1, have power to construct a sewer running through private lands and not in any street or way and to make an assessment under § 3 of the same chapter for benefits received from its construction.

Where the mayor and aldermen of a city make a sewer assessment under R.L.c. 49, § 3, for benefits received from the construction of a sewer running through private lands, the owners of which have granted to the city the right to lay the sewer through their lands, and not running in any street or way, but in the order making the assessment it is declared to be made under a certain ordinance of the city relating to assessments for the construction of sewers in streets or ways, and providing for such assessment according to the frontage of the estates assessed on such street or way and according to the area of such estates within a fixed depth of one hundred and fifty feet from such street or way, although the assessment for the sewer through private lands is not made under the ordinance the reference to the ordinance indicates that a lot thus assessed embraces the whole front upon the strip conveyed to the city by its owner and extends back one hundred and fifty feet from that strip.

HAMMOND, J.

This is a petition for a writ of certiorari to quash two sewer assessments. One of the sewers runs through a public highway called Mill Street, and the other chiefly through private lands of the petitioner and others, who had granted to the city the right to lay the sewer through their lands. Various objections are urged by the petitioner against the validity of each of these assessments. We shall consider only those which have been argued upon the brief of the petitioner, and shall treat the others as waived.

1. As to the Mill Street sewer: The petitioner contends that the assessment was made under § 7 of c. 49 of the Revised Laws, and not under § 3, and that there is nothing to show over what part of the land that assessment extended. But by an inspection of the proceedings of the assessing board it clearly appears that the assessment was made under the sixth section of the city ordinances, and therefore under the authority conferred by § 5 of c. 49 of the Revised Laws, and not by § 7. And when the proceedings are read in connection with the ordinance there is no doubt as to the precise portion of the petitioner's land covered by the assessment. The lot embraces the whole frontage on the street and extends back one hundred and fifty feet and no more.

It is suggested by the petitioner that unless an opportunity for a hearing upon an appeal for an abatement is given the assessment would seem to be illegal and void because no hearing was granted to the petitioner. But we think that the provisions of c. 49, § 4, which grant an appeal, are applicable to this assessment.

2. As to the sewer running chiefly through private lands: This sewer was not built in any street or way, and therefore the provisions of the ordinance are not applicable so far as it runs through private lands. But the board had the power to construct the sewer, (R.L.c. 49, § 1,) and to make an assessment for the same under § 3 of the same chapter; and, although the certificate of the engineer seems to have followed the form prescribed by the ordinance in the case of a sewer located wholly in a public street, and although the master finds that "the computations for the assessments were made in accordance with the provisions" of the ordinance, still, in view of the answer of the board it must be assumed that the estate of the petitioner was fairly and equitably assessed upon the basis of benefit received by the construction of the sewer. Such an assessment, even if not authorized by the ordinances or by R.L.c. 49, § 5, was authorized under R.L.c. 49, § 3, and may properly stand as valid under the powers conferred by that section. The petition in this respect shows no good reason for writ of certiorari.

As in the case of the first sewer, so in this, there is a right to be heard on appeal, so that in that way the landowner proceeding in due time can always be heard before the assessment becomes finally fixed. R.L.c. 49, § 4.

We think also that it definitely enough appears upon what part of the estate the assessment is made for this sewer. The lot embraces the whole front upon the strip conveyed to the city by the petitioner, and extends back one hundred and fifty feet from that strip.

We do not see that justice requires that the petition should be granted.

Petition dismissed.