the treasurer, it was held that such fines and forfeitures were recoverable only by complaint in the name of the treasurer of the city or town, and in no other way. Commonwealth v. Fahey, 5 Cush. 408. Under sect. 26, chap. 28 of the Public Statutes, the city marshal or other police officer, or the city treasurer, may prosecute for all fines and forfeitures which may inure to the city. The ordinances and by-laws of the city of Boston relating to buryinggrounds and the burial of the dead were held to be regulations relating to health within the meaning of the above statute. Commonwealth v. Fahey, 5 Cush. 411. WET, ROTTEN, AND SPONGY LANDS. to health, etc., nuisance. c. 80, § 28. 34. Lands in a city or town which are wet, rotten, or Lands injurious spongy, or covered with stagnant water, so as to be offen- deemed a sive to persons residing in the vicinity thereof, or injuri- Public Statutes, ous to health, shall be deemed to be a nuisance, and the board of health or health officer of such city or town may, upon petition and hearing, abate such nuisance in the manner provided in the following sections. ously affected, etc., may apply to board for Public Statutes, 35. Any person claiming to be injuriously affected by Persons intari such nuisance may, by petition describing the premises upon which it is alleged to exist, and setting out the abatement. nature of the nuisance complained of, apply to the board c. 80, § 29. or health officer for its abatement; thereupon such board or health officer shall proceed to view the premises, and examine into the nature and cause of such nuisance. appoint hearing, 36. Upon such examination, the board or health officer, Board to if of opinion that the prayer of the petition or any part etc. Public Statutes, thereof should be granted, shall appoint a time and place c. 80, § 30. for a hearing, and before the time so appointed shall cause reasonable notice of the time and place to be given to the petitioners, the persons whose lands it may be necessary to enter upon to abate the nuisance, and any other persons who may be affected by the proceedings, and, except in those cities and towns in which the mayor and aldermen and selectmen constitute the board of health, to the mayor or the chairman of the selectmen, that they may be heard upon the necessity and mode of abating such Form of notice, and how served. c. 80, § 31. nuisance, and the questions of damages, and of the assessment and apportionment of the expenses of the abatement. 37. Such notice shall be in writing, and may be served, Public Statutes, by any person competent to serve civil process, upon the mayor, or chairman of the selectmen, the petitioners, the owner or occupant of any land upon which it may be necessary to enter, or which may be benefited by the abatement, or the authorized agent of such owner or occupant, or by leaving an attested copy of such notice at the last and usual place of abode of such persons; but if the lands are unoccupied, and the owner or agent is unknown, or out of the State, the notice to such owner may be served by posting an attested copy thereof upon the premises, or by advertising in one or more public newspapers in such manner and for such length of time as the board or health officer may direct. Board after hearing may Manner of such abatement. Damages, and upon whom assessed. c. 80, § 32. 38. At the time and place appointed for the hearing, abate nuisance. the board or health officer shall hear the parties, and after the hearing may cause such nuisance to be abated, according to its or his discretion; and for that purpose may Public Statutes, enter and make such excavations, embankments, and drains upon any lands, and under and across any streets and ways, as may be necessary for such abatement; and shall also determine in what manner and at whose expense the improvements made shall be kept in repair, and shall estimate and award the amount of damage sustained by and benefit accruing to any person by reason of such improvements, and what proportion of the expense of making and keeping the same in repair shall be borne by the city or town and by any person benefited thereby. The damages so awarded shall be paid by the city or town, and there shall be assessed to the several persons benefited by such improvements their proportionate part, to be ascertained as before provided, of the expense of making and keeping in repair such improvements, and the same shall be included in the next city or town taxes of such persons, and shall be a lien upon the real estate ben efited thereby, and be collected in the same manner as other taxes upon real estate, and shall be liable to abatement as other taxes now are. Public Statutes, c. 80, § 33. 39. The board or health officer shall, within thirty Board to make return of doings days after the abatement of any nuisance in the manner to town clerk. hereinbefore provided, make return to the city or town clerk of its or his doings in the premises, which return shall be by him recorded in the city or town records. 40. If the board or health officer unreasonably refuses or neglects to proceed in the matter of such petition, the petitioner may apply by petition to the superior court or any justice thereof, who, upon a hearing and good cause Public Statutes, shown, may appoint three commissioners, who shall proceed in the manner hereinbefore provided. If board unreaact, superior appoint com sonably refuses to court may missioners. c. 80, § 34. grieved in award of dam ages may apply Public Statutes, for jury c. 80, § 35. 41. Any person aggrieved by the decision of the Persons agboard, health officer, or commissioners, in their estimate and award of damages, may make complaint to the county commissioners for the county at any time within one year after the return to the city or town clerk; whereupon the the same proceedings shall be had as in cases where persons or parties are aggrieved by the award of damages by selectmen for land taken for a town way. An order of the board of health of a city, under Pub. Stats., chap. 80, sect. 32 (Statute of 1868, chap. 160), directing the owner of land to remove a nuisance, is void if passed without a previous notice and hearing. The owner of swamp-land conveyed to a reservoir company [authorized by its charter to store water, and to drain off the same in such manner as it should deem best, and for this purpose to acquire land by purchase or otherwise] the right of flowing or raising the waters of a pond over his land by a deed containing full covenants of seisin and warranty. Held, that the deed conveyed an easement in the land, and was not a release of damages for flowing the land; and that the reservoir company might maintain a bill in equity against the owner of the land to restrain him from filling the same. Watuppa Reservoir Company v. Colin McKenzie, 132 Mass. 71. A petition to the board of health of a city described a nuisance as "owing to large quantities of stagnant water standing in an open drain between" two streets of the city. The board of health issued a notice that it was acting under the Pub. Stats., chap. 80, sects. 30, 31 and 32 (Statute of 1868, chap. 160), and abated the nuisance. On a petition for a writ of certiorari to quash the proceedings of the board of health, it did not appear whether the drain was a public or a private one, nor for what purpose it was made; and it appeared to be a watercourse. Held, that it could not be said that the nuisance was not such as could be abated under the Pub. Stats., chap. 80, sects. 30, 31 and 32 (Statute of 1868, chap. 160), and that it was too late to take this objection. Grace v. Newton Board of Health, 135 Mass. 490. On a petition for a writ of certiorari to quash the proceedings of the board of health of a city, assessing the expense of abating a nuisance under the Pub. Stats., chap. 80, sect. 32 (Statute of 1868, chap. 160), the record showed a petition addressed to the board of health, which complained of large quantities of stagnant water standing in an open drain between two streets, from which arose such unhealthy odors as to cause great sickness in the neighborhood, and prayed for a hearing; a reference of the same to the next city government; a vote of the board of health, the next year, to view the premises; a view taken; an order that the city engineer, under direction of a committee, be directed to widen, straighten and deepen a watercourse between the two streets, and that the clerk be instructed to notify abutters on the watercourse of a hearing on a certain day, under the Pub. Stats., chap. 80, sect. 30 (Statutes of 1868, chap. 160); a warrant issued by the clerk to a constable to notify abutters of the intention of the board of health to enter upon the premises for the purpose of widening, deepening and straightening the brook, and that a hearing would be given, at a time and place named, to all parties interested in the matter, as to the necessity and mode of abating the nuisance caused by the brook, and the question of damages, and of the assessment and apportionment of the expenses thereof; and a notice setting forth these things, and stating that it was in accordance with the Pub. Stats., chap. 80, sect. 32 (Statute of 1868, chap. 160). Held, that it sufficiently appeared that the board was attempting to act under this statute. Held, also, that the petition was sufficient to give the board jurisdiction. Grace v. Newton Board of Health, 135 Mass. 490. An assessment cannot be levied, for expenses incurred by a board of health under the Pub. Stats., chap. 80, sect. 32 (Statute of 1868, chap. 160), upon a person to whom notice of the hearing provided for in sect. 30 (3) is not given, although he has knowledge of the doing of the work whereby the expenses are incurred. Under the Pub. Stats., chap. 80, sect. 32 (Statute of 1868, chap. 160), a board of health may act by a committee in abating a nuisance. If a board of health has given notice of a hearing under the Pub. Stats., chap. 80, sect. 30 (Statute of 1868, chap. 160, sect. 3), it need not give a new notice of its intention to make an assessment, under sect. 32 (5). A report of a committee of the board of health of a city, upon the assessment of damages and benefits sustained by the abatement of a nuisance, under the Pub. Stats., chap. 80, sect. 32 (Statute of 1868, chap. 160, sect. 3), was accompanied by orders drawn in accordance with the report, and by warrants upon the city treasurer for the collection of assessments. The record showed that the report was accepted and the orders and warrants adopted. Held, that the adoption of the report sufficiently appeared. Grace v. Newton Board of Health, 135 Mass. 490. APPEAL TO COUNTY COMMISSIONERS. pass all proper grieved by refusal of board to abate a 42. Any person aggrieved by the neglect or refusal of Persons agthe board of health in a city or town to pass orders abating a nuisance or nuisances may appeal to the nuisance may county commissioners, who may hear and determine the Public Statutes, matter of such appeal, and exercise in such case all the c. 80, § 36. powers which the board might exercise. appeal to county commissioners. to give notice, proceedings. c. 80, § 37. 43. The party so appealing shall, within twenty-four Party appealing hours after such neglect or refusal, give written notice to etc. Other the opposite party of his intention so to appeal, and Public Statutes, within seven days shall present a petition to some one of the commissioners, setting forth the grievances complained of, and the action of the board of health thereon, and shall thereupon enter into such recognizance before the commissioners, in such sum, and with such surety or sureties, as they shall order. expenses, how Public Statutes, c. 80, § 38. 44. Each commissioner, when acting under the pro- Costs and visions of this chapter, shall tax three dollars per day for paid. time, and five cents a mile for travel to and from the place of meeting, to be paid into the county treasury; and such costs shall in the first instance be paid by the appellant, and the commissioners may award that such costs and any other costs of the proceeding shall be paid by either party, as in their judgment justice shall require. DISEASES DANGEROUS TO PUBLIC HEALTH; HOSPITALS; 45. When a householder knows that a person within Householders his family is sick of small-pox, diphtheria, scarlet fever of dangerous to give notice diseases. |