Hunnewell v. City of Charlestown

106 Mass. 350

Opinion

Wells, J.

This is a bill in equity to prevent the sale of the plaintiff’s land to pay an assessment, laid thereon by the city council of Charlestown, for the expenses of laying out and constructing Park Street in said city. The land in question does not abut upon said new street. The plaintiff contends that the assessment is illegal and void ; for the reason that, when the proceedings were taken, the law, applicable to that city did not authorize an assessment, for such purposes, upon any land except such as abutted upon the street in which the improvement was made.

If the plaintiff’s position is correct, the assessment was illegal and void, no lien exists upon the land ; and an attempt to sell it would be ineffectual to pass any title. If the plaintiff should pay the assessment to save his land from a sale under the form of legal process, he would be entitled to recover it back as money wrongfully received by the defendants. He thus has a complete and adequate remedy at law. It was so held in regard to a general tax, illegally assessed, in the case of Loud v. Charlestown, 99 Mass. 208. We do not see that an assessment of this nature stands upon any different ground. The question does not depend upoi the amount of the assessment; nor the mode in which it is made, or to be collected. It is not affected by the fact that there are others, whether few or many, who are subjected to a like assessment by the same proceedings of the city council, and who propose to contest their liability. It is no foundation for a resort to equity, that the plaintiff is put to the inconvenience of raising the money to pay the assessment, in order to have his legal remedy by recovering it back; or else to the risk of losing his property, by a sale, if the assessment should be upheld. In the case of general taxes he has not even that election.

We are satisfied that the point is well taken in defence, that, for the grievance alleged, the plaintiff has an adequate remedy at law; and the bill must therefore be Dismissed.