Barnstable Savings Bank v. City of Boston

Colt, J. Under the St. of 1873, e. 340, land of which the petitioner became absolute owner in April 1875 was assessed in February of the same year for the expense incurred by the city in raising the grade. The petitioner, after it became absolute owner, and within six months after the assessment was made, gave notice of its dissatisfaction, and that it surrendered the land agreeably to the provisions of the act. It is contended that the city was thereupon required to take the land, and file in the [256] registry of deeds, within sixty days, a description of the same, together with a statement that it was taken pursuant to the provisions of the act, signed by the mayor. But nothing was done towards taking the land, and, in December following, the city council passed an order by which it attempted to vacate the assessment. The petitioner complains that it is thus deprived of the right to have damages for the taking assessed by the jury, if not agreed on, and prays for a writ of mandamus directing the city council and the mayor forthwith to take the land and file the necessary certificate and description within the sixty days. When the order establishing the grade in 1873 and the order making the assessment in February 1875 were passed, one Hildreth was owner of the estate, subject to a mortgage containing a power of sale given to the savings bank, the present petitioner. Under this mortgage the land was sold to a person who bought it for the bank, and who conveyed it to the bank in April 1875. The bank gave notice of its dissatisfaction and surrender in the following July. The right of the bank to surrender is denied, on the ground that it is a personal right limited to whoever may be owner at the time of the assessment. It is provided in the fourth section of the act that “ any person dissatisfied with the assessment ” may give notice of surrender, and the words “ any person.” are held to mean the same as the words “ any person entitled to any estate,” which are used in the third section. Leavitt v. Cambridge, 120 Mass. 157. The bank in our opinion comes fairly within this description. It had title by mortgage before any of the proceedings for filling the land were commenced, and it became absolute owner of the estate by foreclosure, within the six months allowed for a surrender of the same by the owner. This was precisely the position of the petitioner for a writ of mandamus in Farnsworth v. Boston, 121 Mass. 173, where the ownership of the equity of redemption had been acquired after the assessment had been made upon another person, and where no objection was made on this ground but that the petitioner had a right to surrender. The expense of filling is by the act made a lien upon the land itself, which attaches to it in the hands of any subsequent owner. The right to surrender is not merely a remedy for an over assessment; it is one of the modes [257] provided by the act for paying the expense of the improvement when completed. It is a distinct part of a scheme adopted for the purpose of preserving the public health of the city. It is a privilege which becomes vested as soon as the assessment is made and the land is incumbered by the lien. There is no good reason shown why one who becomes an owner subject to this lien should not have the right to surrender within the time fixed, although not the owner when the assessment is made. It was decided in Farnsworth v. Boston, above cited, that when the city council has once laid an assessment under this act, it has exhausted its authority, and cannot deprive the owner of his right to surrender, by vacating the assessment. It is the fact that an assessment is made, without regard to the amount of it, which secures the right. The owner may think himself injured by the raising of the grade, whatever be the amount of the assessment upon him, and the right is not taken from him because the amount for which his land is taxed is small. There is no such delay on the part of the petitioner in applying for a writ of mandamus as should deprive it of the rights secured to it under the act, on the ground of loches. The city has not changed its position, or lost any advantage, by the delay. If it had done its duty, the damage to which the petitioner would have been entitled would have been the value of the land at the time of the taking, less the improvements. It cannot reasonably complain if its value has changed since the surrender. The land is still liable to be sold for the non-payment of the assessment. If the city be not required to take the land, there is no way in which the bank can recover its value; and, in the words of the statute, (Gen. Sts. o. 112, § 3,) it becomes necessary, “ to the furtherance of justice, and the regular execution of the laws,” that the writ of mandamus should be granted. Alternative mandamus to issue.