Case 11 — Action by the City of Louisville against thu Louisville *&*N. R. R. ICo. and L. R. Figg for Cost of Street Improvement.

June 17.

#### Figg v. Louisville & N. R. R. Co. City of Louisville v. Figg.

ATPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.

From the Judgment Figg and the City of Louisville .Separately Appeal.

Reversed.

Municipal Corporations — Street Improvement — Railroad Right of Way- — Liability for Assessment.

1. A strip of land appropriated to use by a railroad as a right of way, its a “lot” within the meianing of the statu-tel governing street improvements and is liable to, an assessment for a street improvement.

H. L. .STONE, attorney for City of Louisville.

The question involved in this appeal isi whether -or hot the property or right of way of the L. & N. R. R. Co. within -the area defined by the city ordinance is subject to the statutory lien in favor of -the contractor for street improvements.

The railroad company contends that it is not (1) because ft~: properly was not benettited by the improvement; (2) because it .had been withdrawn from the ordinary use for which town lots are -appropriated and had become a pailt of the railway essential to its operation, and it is not wiithin the ¿policy of the law subjecting town lots to such local burdens.

*136In the City ol Ludlow v. Trustees of the Cincinnati .Southern Railway, 78 Ky., 357, decided March 4, 1880, this court in an opinion hy Judge Himes held that a lot upon the street owned 'by the .said railway company was subject to an assessment fo,r the iimproveiment of such street by the city of Ludlow, and the fact that Ithe lot was the property of the railroad company and used for railroad purposes furnished mo .more rea,sota, why it should he exempt from an assessment than if it belonged to a natural person. The same contentions were made in that case as are made by defendant, L. & N. R. R. 'Co. in its answer, viz.; (1) That its property was molt benefited by .the improvement, and it had been, withdrawn from the ordinary uisei fop which town lots are appropriated and had become, a part of 'the railway essential to its operation, and it was not within, the policy of the law subjecting town lots to such local burden. There it appeared that *the lot supported a portion of the masonry of the, road-hed,*and was- essential to the proiper drainage of the track. T(h,e assessment was made ion the lots in proportion to, the number of front feeit and in accordance with the provision» of the 'Charteipof ithe city of Ludlow. As to the first objection the court sai-cL “that the lot was not benefited1 by the improvement of the street is sufficiently answered by. the action- of iMcFerram v. A’lloway, 14 Bush, 580.’’ Judge Hines quotes with approval the language in the case referred to as follows:

“This court has so often -detemmined that such piower exlisteft in the Legislature that it is no longer am open question, and the benefits to be derived by those living 'in the locality of the improvement, having been determined by the Legislature! in passing the act under which the tax was imposed, this court has no revisory power over ft.- In the judgment of the Legislature -this .taxing district *is*benefited by the (improvement, ,amd the fa,ct that an actual benefit -is not derived by one living in a ngmolte part of the district, or where it i-s difficult to approach the road or highway, is no -argument against the imposition of the burden.” Furtherimore, Judge Hines said (lb., 360)':

“The passage iof the ordinance by Ithe cilby 'council, under the power granted In the charter, is conclusive of the propriety of ■the improvement, amd of the question of benefit *to*Ithe owners of abutting property.” (Northern Ind. R. R. Go. v. Connelly, 10 Ohio S't., 164.)

"With reference to the -second position .contetaded for; by the railroad company’s counsel, that *the lot was necessary for the operation of the railway,*and it is contrary -to public policy to, subject it to such burden, the court after 'reviewing the authorities cited by the railroad company’s counsel, holding that the *137property of a -railroad company could not be sodd in parcels to satisfy a lien or tax, said (lb., 362):

“These cases bear upon the casei under coñisideraitiion in so far as Ito furnish a rule of construction, for statutes laying local burdens upon such *quasi*public corporations as railroads!, but •when the rule is -applied to *assessments*for local improvements, where the statute directs, that the property assessed be sold to satisfy the claim, and *directs the manner in which it shall he sold,*it will be found *not to forhid the fragmentmy sales*-against which those cases are directed.”

Still further, in support of the conclusion reached, Judge Hines states (lb., 362-63):

“But if there were any doubt on this' point, we would not 'hesitate, on the authority of the L., C. *&*Lex. R. R. Co., and ■the Louisville Transfer Co. v. O'bsf & Stengel, decided by this ■court in February, 1875, to -hold that the property of the company should be .sold to satisfyHhe assessment. In -that oaise the *•ioad-hed*and the grounds belonging to the company were directed *to*• *he sold*to satisfy a sum assessed against- the companies *for street improvement,*and under a charter of thei city of Louisville* similar in this respect to the- charter of the city of Ludlow. In the opinion in that ease], which was delivered By Judge Liudsay, who delivered the> opinion in the Elizabethtown and Paducah railroad case it is said: ‘Real property held by railroad companies within the Corporate limits of the city of Louisville is *not exempt*from street -taxation. The terms of the grant of the power to tax for such purposes includes *all real estate,*and that held hy railroad companies, like that held ■by churches, colleges, hospitals and other institutions of like character, must bear ifcs proportion of the local burden. There is no constitutional restriction upon the power of the Legislature to Impose local taxation upon railroad companies. It is a mere question of policy.’ ”

Judge .Hines then proceeds to- quote authorities in dither States, many o.f which have already been cited' in ith-is brief, and the opinion is concluded as follows:

“We think that, both upon reason and authority, a lot held and owned hy the railway company, .as this’ is held and used, is as mufch subject to -assessment for Street improvement* (as if it .belonged to a natural person. In, the law authorizing the ■assessment *there is no exemption of railroad property,*nor exemption ,of property because of its application to *certain*uses.”

It will be observed by .the court that the authorities cited and approved hy -this court 1m the opinion rendered <by Judge Hines, nearly all aie cases where, the *right of way*of the railroad com*138pany was sought to¡ be subjected to. the assessment for’ local improvements.. In the Ludlow' case the lot sought toi be aibjeoted relal-ly *formed a part of the railway company’s right of way,*as it supported the masonry that upheld the tracks of the railroad company in the city of Ludlow. In other wordsi, if it had been .sold under the lien for the local 'assessment and purchased by a stranger, the railroad company’s operation of its railroad would have been materially 'interfered with, but! that appears not to have, formed any valid objection to the enforcement of the lien.

It will be observed that said railroad company by its answer (lb., 36) expressly alleges and claims that it owns and holds a *perpetual*right of way for railroad purposes from its station in Louisville, Kentucky, to Nashville, Tennessee, over -a strip 'of land 185 miles in length and 66 feeit or more .in. width and that this right of way includes the portion of land described in the petition in this action. This *perpetual*right of way practically, and to all intents and purposes! amounts to itttie fea simple title. But it is unimportant what kind of title the said railroad company owns or holds. *All*real .esit&tei within the .area of the district subject to this local assessment must .stand the burden thereof, and the lien of the con.tr,actor for the cost of the -original improvement of Magnolia .avenue attached therer to, and ¡should, under the statute, ordinance and apportionment of itihe cost, as shown by this record, be enforced by the court. •

B. F. WASHER and Wm. FURLONG, fob L. R. Figg.

■The question of the right of way of thd railroad company being liable for the municipal assessment, counsel wishes' to call attention to the recent book published in 1900, “The Modem Law of Municipal Corporation,” by John Wl 'Smith. Id voL 2, sec. 1239, the author says:

“Where the statute- authorizes assessment for local liimprovemen-ts .against abutting property the right of way ¡of .a railroad company is assessable. . . . The right of way of a railroad company is subject to' siieoial taxation for a local improvement.”

To support the foregoing tetxt, the author1 cites) the following cases:

“Indianapolis & R. !Co. v.. Capitol Paving Co., 24 Ind. App., 114; s. e., 54 N. B., 1076; Chicago & R. Co. v. City of Milwaukee, 89 Wi.s,, 506; s. e., 62 N. W., 417; Peru & R. Co: v. Hanna,. 68 Ind., 562; Pittsburg & R. Co. v. Hays), 17 Ind. App., 26Í,-s. c., 44 N. E„ 375; 45 N. E., 675; 46 N. E., 597; 'State v.'Ci’ty of Passaic, 54 N. J'. L., 340; a. c., 23 Atl., 945; Louisville & R. Co-, v. State, 8 Ind. App., 377; s. e., 35 N. E., 916; Lake Erie & *139¡R. Co. v. Bowker, 9 Ind. App., 428; s. c., 36 'N. B., 864; Louisville & R. Co. v. Boney, 117 Ind., 501; s. c., 20 N. E., 432.”'

“Chicago *&*R. Co. v. Village of Emhurst," 165 111., 148; s. c., 46 N. E., 437; Chicago & R. Co. v. City of Joliet, 153 111., 649; s. c., 39 N. E., 1077; Chicago ¿ R. Co. v. Feople, 120 111., 104; s. c., 11 N. E., 418; Payne v. Village of South Springfield, 181 111., 285; s. c., 43 N. E., 1105; Illinois & R. Co. v. City of Mattoon, 141 111., 32; s. c., 30 N. E,, 773; Illinois & R. Co. v. City of Chicago, 141 111., 509; s. c., 30 N. E., 1036; Kuehmer v. City of Freeport, 143 111., 92; s. c., 32 N. E., 372; Rich v. City of Chicago, 152 111., IS; s. c., 38 N. E.,‘255; Illinois & R. Co. v. Commissioners, 129 III., 417; s. e., 38 N. B., 925; Drainage Comrs. v. Illinois & R. Co., 158 111., 353; s. c., 41 N. E.; 1037; Illinois & R. Co. v. City of Decatur, 126 111., 92; s. c., 18 N. E., 315; Illinois & R. Co. v. City of Decatur, 147 U. a, 190; s. c., 1.3 S. St., 293; Illinois & R. Co. v. City of Decatur, 154 111., 173; s. c., 38 N. E., 626; Chicago & R. Co. v. City of Quincy, 136 111., 663; s. e., 27 N. E,. 192; Chicago *&*R. Co. v. City of Moline, 158 111., 64; 's. o., 41 N. E., 877; Freepprt S't. R. Co. v. City of Freeport, 151 111., 451; s. e., 38 N. E., 137; Pittsburg *&*R. •Co. v. Hays, 17 lad. App., 261; s. c., 44 N. E., 375.”

If the judgment against the city of Louisville is affirmed, o? •course the contractor, L. R. Figg, is not much interested in the remaining question, hut should the judgment against the city of Louisville he reversed, then, we think the judgment agaitost the railroad company would also he reversed and the company held for the assessment.

HELM, BRUCE & HELM, -attoenets eok appellee.

CONCLUSION.

In conclusion, therefore, we submit the following propositions viz.:

1. The property of the railroad company sought 'to bel subjected to this special tax is only an easement, viz., a right of way.

,2. It is not benefited, hut rather is injured, by the ümprovememt of the street in question.

3. A railroad right of way is not a “lot" within the meaning of the statute governing staeet 'improvements.

4. To require the owner of this right of way, which is not benefited, hut rather is .injured, by the improvement of this street, to pay part of the cost thereof, would b© to deprive him of his property without due process of law.

AUTHORITIES.

1. Title of L. & N. R. Co. is only to an easement, viz., a right of way. 3'Elliott on Railroads, sec. 972; Kelly v. Donahue, 2 *140Met., 482; Morris v. Schollsville, &c., Turnpike Co., 6 Bush, G7l; Washington Cemeteiry Co. v. Prospect Park E. R., 68 N. Y., 593; Clark v. Worcester, 125 Mas®., 230; L. & N. R. iCto. Ghauter, Acts 1849-50, p. 427.

2. A railroad right of way is not a “lot” within the meaning ■of the assessment statute. Ky. Stats., seca. 2833 and 2834; L. & N. R. R. Co. v. Com., 106 Ky., 638; Owen Tyler v. L. &. N. R. R. Co., 23 Ky. Law Rep., 827; 'City of Allegheny y. West Pa. R. Co., 138 Pa. St., 375; 21 Atl. Rep., 763; Chicago, &c., Ry. Co. v. City of Ottumwa, 112 Iowa, 300; 83 N. W., 107-1.

3. No constitutional power to assess part of the cost of- i approving a street upon a railroad right of way mot benefited thereby. Norwood v. Baker, 172 U. S., 269; French v. Barber Asphalt Co-., 181 U. S., 325; White v. City lof .Tacoim-a, 109 Fed. Rep., 32; Barfield v. Gleason, 23 Ky. Law Rep., 128; Chicago', &c., Ry. Co-. v. City of Milwaukee, 89 Wis., 506; 62 N. W., 417; Detroit, &e., R. Co. v. City of Grand Rapids, 106 Mich., 13; 63 N. W., 1007; N. Y. & N. H. R. Co. v. City of New Haven, 42 Conn., 279; 19 Am. Rep., 535; New Jersey, &e., R. Co. v. City of Elizabeth, 37 N. J. L„ 330.

AUTHORITIES EXAMINED.

111. Cent. R. Co. v. Decatur, 147 U. S., 190; City of Blooming-ton v. 'Chicago, &c., Ry. Co., 134 111., 451; 26 N. E., 366; Northern Indiana R. Co. v. Connelly, 10 Ohio St., 159; Peru, &c., R. Co. v. Hanna, 68 Ind., 567; City of New Haven v. Fair Haven, &c., R. Co., 38 Conn., 422; 9 Am. Rep., 399; Paterson, &c., R. Co. v. City of Passaic, 54 N. J. L., 340; (City of Ludlow v. Cin. Sou. Ry. Co., 78 Ky., 357; L. C. & L. Ry. Co. v. Obst &'Stengel, Mss. Op.

Opinion of ti-ie court by

JUDGE PAYNTER

¡Reverríno.

The main line of the Louisville & Nashville Railroad Company runs southwardly from near Tenth and Broadway streets, Louisville, Ky., to and beyond Nashville, Tenn, Its right of way is 60 feet in 'width. Under appropriate proceedings in the general council, Magnolia avenue was improved by original construction, ,and the taxing district was properly designated. Within that district, east of Seventh street and south of Magnolia avenue, is a parcel of land 60 feet wide, used by the appellee as a roadbed, or *141what is commonly called the “right of way,” and, as a part of it, a triangular parcel north of Magnolia avenue and east of Seventh street. The local situation is shown by \ the following plot.

It is insisted on behalf of the railroad company that (1) the property sought to be subjected to part of the cost of street improvement is only a right of way, and therefore can not be charged therewith; (2) it receives no benefit from the improvement; (3) the right of way is not a lot, in the meaning of the statute governing street improvements.

It is not the intangible right to use it, but the strip of land which the railroad company appropriates for its use, and upon which it builds its roadbed, is its right of way. The railroad company has been in possession (of the strip of land in question for 50 years. It is a part of a great railroad system. Its right of way is perpetual. In Elizabethtown, Lexington & Big Sandy R. Co. v. Combs, 10' Bush, 393, 19 Am. Rep., 67, the court held the injury resulting from the location of a railroad in such proximity to adja*142cent property as that smoke, soot, and fire from passing engines was thrown or blown into or upon it, entitled the owner to a single recovery, as the injury .was permanent and enduring. In other words, the court regarded that the railroad had appropriated for all time to come, and the injury would bé permanent. It is the very remotest possibility imaginable that the appellee would ever abandon its right of way. The court concludes that its use of its right of way will be perpetual. It is therefore practically the owner of the land. If this strip of land was not occupied by the railroad company as a right of way, it would not be suggested that it was not subject to the special tax for street improvement. The purpose for which the lot is used can not affect the question of its liability for the cost of street improvement. Counsel for appellee calls attention to cases of other courts holding that rights of way can not be charged with the cost of street improvements, while, on the other hand,, counsel for the appellant calls attention to cases in other courts holding that such rights of way are liable for such cost. It is not necessary to discuss this class of cases further, because this court, in Louisville, Cincinnati & Lexington R. Co. and Louisville Railroad Transfer Co. v. Obst and Stengel, MS. opinion, Feb. 23, 1875, and City of Ludlow v. Cincinnati Southern R. Co., 78 Ky., 357, held that such special taxation could be imposed.

On the second question we quote from Preston v. Rudd, etc., 84 Ky., 156, 7 R., 806, which reads as follows: “Such .assessments are made upon the assumption that a portion >of the community are specially benefited by the improvement. The principle is that the terrtory is benefited, that, it has a common interest, and that, governed by equitable rules, it must equally bear the burden. Necessarily, indi*143vidual cases of hardship will arise, but it approaches equality as nearly as it is practicáble. It follows that a lot owner may be compelled to pay his proportion of the cost of improvement, although in his particular case his property may not be benefited. This rule, however, can not be so extended as to entirely take from the citizen his property. This would work a manifest injustice. It would be spoliation, and not taxation. Under the guise of benefit and taxation, he can not be thus arbitrarily deprived of his property. It would be but an appropriation of it, by the exercise of arbitrary power, -to public use, without compensation. . . .” We do not understand that Barfield, etc., v. Gleason, etc., 111 Ky., 491, 23 R., 1102, 63 S. W., 964, changes the rule announced in Preston v. Rudd, etc., and other cases of this court. Spoliation is not shown in this case. Under the statute governing street improvement, a lot is any piece of land within the territory defined by the statute or the general council, where the territory to be assessed is not bounded by principal streets. The use or nonuse, or the character of the use to which the parcel of land is put, does not determine the question whether it is or is not a lot. The strip of land used by the railroad company the day before it was appropriated by it as a right of way was a lot, in the meaning of the statutes, and to thus appropriate it can not change its character.

The, judgment is reversed for proceedings consistent with this opinion.