City of Lowell v. Wyman

66 Mass. 273

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1853
• Status: Published

Opinion

By the Court.

On the agreed statement of facts, the court are of opinion that the plaintiff is entitled to recover the amount assessed by the city upon the defendant, for the construction of a permanent sidewalk in front of his buildings, pursuant to the charter and by-laws. It appears that the first sidewalk was constructed, when there was no build ing erected, but the land was open and vacant, and that the first sidewalk of timber and plank was not only temporary in its nature, but was intended to be temporary, as on a vacant lot. In this respect, this case differs essentially from that of Lowell v. French, 6 Cush. 223. -That case is said to rest solely on the authority of St. 1833, c. 128. The present decision, it appears to us, is justified by St. 1847, c. 82, § 5.

Another point made by the defendant was, that the :ity had no right of action to recover such assessment, but that the only remedy was by the enforcement of a lien on the estate; but the court think the position untenable. This lien is given by an act to amend the charter of Lowell. St. 1845, c. 203, § 1. But this remedy was merely cumulative. The original charter, St. 1836, c. 128, § 9, provided for the construction of sidewalks, in front of buildings, “ at the expense of the owners thereof.” No specific remedy being given, the remedy must be sought in the common law, which was, of course, by action. The remedy given by the subsequent statute, was additional, and for greater security, and did not supersede the remedy by action. Judgment for the plaintiff.