Atkins v. City of Boston

74 N.E. 292, 188 Mass. 77, 1905 Mass. LEXIS 1086

• Court: Massachusetts Supreme Judicial Court
• Decided: May 17, 1905
• Status: Published

Opinion

Loking, J.

[After the foregoing statement of the case.] We are of opinion that the plaintiffs are entitled to judgment.

The only contention made by the defendant is based on St. 1902, c. 526, which provides that “ 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.” But under this taking the city had a right to use the channel for sewerage purposes. It follows that that defence, fails.

The case presented therefore is one where a benefit assessment could have been made, but the city officials neglected to make one.

That a benefit assessment could have been laid under St. 1899, c. 450, see Hall v. Street Commissioners, 177 Mass. 434.

Where a benefit assessment might have been laid but none has been laid, there is no more reason for setting off the benefit than if it had been made. Benton v. Brookline, 151 Mass. 250.

In accordance with the terms of the report the entry must be Judgment for the plaintiff in the first case for $978.96, and in the second case for $1,308.60, with interest in each case from May 8,1904, to the date of judgment.