10 Mass. App. Ct. 841

July 21, 1980

This action was brought in the Superior Court against the defendant town for declaratory relief as to the validity of certain sewer use charges, for injunctive relief, and for damages. The plaintiff claims that it has been unlawfully required to pay to the town as part of a sewer use charge a portion of the annual Metropolitan District Commission (MDC) sewer charge assessed against the town. Judgment was entered for the defendants, from which the plaintiff now appeals.

The pivotal issue here, as in the courts below, is, as stated by the trial court, "the propriety of the town charging back [only] to the [present] users of the [sewer] system a portion of the [annual] charge which the town incurred from the MDC [sewer connection]." There are presently about sixty-five users who are connected to the town sewer system and paying sewer use charges.

The judge's subsidiary findings amply support his conclusion that "[t]he Town's inclusion of a portion of the annual Metropolitan District sewer charge in its user charges is a fair and equitable charge which is incident to the maintenance and operation of its system of sewerage and sewage disposal." The town is authorized by St. 1958, c. 297, Section 1, to construct and operate a system of sewers and is permitted to apply the monies derived from sewer use charges "to the payment of charges and expenses incident to the maintenance and operation of said system of sewerage and sewage disposal." St. 1958, c. 297, Section 8. See also G. L. c. 83, Section 16, as amended by St. 1961, c. 311, which permits a town to establish "just and equitable annual charges for the use of common sewers." See Carson v. Sewerage Commrs. of Brockton, 175 Mass. 242, 244-245 (1900), aff'd, 182 U.S. 398 (1901). Cf. O'Malley v. Public Improvement Commn. of Boston, 342 Mass. 624, 628-629 (1961).

The plaintiff's reliance on the case of Mullen v. Sewer Commrs. of Milton, 280 Mass. 531, 534-536 (1932), is misplaced, as that case is inapposite to the statute and circumstances presented here.

In sum, we think that this case was rightly decided for the reasons given by the trial judge.

The judgment is to be modified by adding a declaration of the validity of the town's sewer use charges and, as so modified, is affirmed.

So ordered.