Lincoln v. City of Worcester

Ames, J. It appears that, in the execution of the work of widening and otherwise improving Pratt Street, the respondent has not adhered literally to the terms of its own order. The street has been finished upon a considerably lower grade. As the respondent has undertaken to assess the betterments resulting from this improvement upon the persons specially benefited [122] thereby, the grade which has been practically adopted must be considered as the true grade for all the purposes of such assessment. The respondent has no right, under the St. of 1871, c. 382, § 1, to make any such assessment until after the street is in fact widened and graded. It is true that the sidewalk, at the point where it is crossed by the petitioner’s driveway, is not yet reduced to the general level upon which the street has been constructed. But, according to the decision in Whiting v. Mayor & Aldermen of Boston, 106 Mass. 89, the work of grading the street may nevertheless be considered as substantially performed. There was evidence tending to show that this delay in the completion of that part of the sidewalk was temporary only; and the work of completing and fitting it for convenience of the public use might be left to be done in the ordinary mode of superintendence of streets, without impeaching the assessment. The, act of making the assessment is a claim on the part of the respondent that it has done the widening and grading which it intended to do ; and, in considering the reasonableness and justice of the assessment, the jury are to consider what has actually been done rather than what on paper was directed to be done. Under the instructions given them, the jury must first have satisfied themselves what was the permanent grade of the street, and whether the petitioner’s driveway was left undisturbed as a temporary accommodation to him, or otherwise. The case was properly submitted to the jury, and the Exceptions are overruled.