#### Chicago, Milwaukee & St. Paul Railway Company, Appellant, vs. City of Milwaukee and another, Respondents.

*December 7, 1911*

January *9, 1912.*

*Municipal corporations: Street improvements: Special assessments: Railway property: Right of way: Pleading: Ownership.*

1. In an action by a railway company to set aside special assessments against certain lands for street improvements, allegations in the complaint that plaintiff is the owner of the lots, that they are part and parcel of its right of way, that its line of railway was at the time of the assessment operated as part and *40parcel of its system of railway for public use, and that the said! lands constituted necessary right of way, are construed to mean that the plaintiff is the owner in fee of the lots and not of a. mere easement or right of way over them.

2. Ch. 425, Laws of 1903 (see. 12107c, Stats.: Supp. 1906), providing that the property of all corporations, including railway companies, “shall be in all respects subject to all special assessments for local improvements in the same manner and to the-same extent as the property of individuals,” is a valid enactment, and under it lands of a railway company, though used solely for a right of way, are subject to special assessments, for street improvements.

3. Under said statute the land is to be considered in its general relations, irrespective of the particular use to which it may be-put.

4. What was said in *Chicago, M. & St. P. R. Co. v. Milwaukee,*89 Wis. 506, to the effect that, as a matter of law, a railway company’s right of way is not benefited by the improvement of the street upon which it abuts, is overruled.

Appeal from an order of tbe circuit court for Milwaukee-county: E. C. EschwbileR, Circuit Judge.

*Affirmed.*

Action to set aside special assessments for street improvements against plaintiff’s right of way in tbe city of *Milwcm-hee.*Tbe complaint alleges that plaintiff is tbe owner and operator of a system of railways, for public use, in Wisconsin- and other states; that several of its lines of railway enter the-city of Milwemlcee, and have been maintained and operated,, for public use, within said city, for more than twenty years-last past; that it is the owner of lands lying in defendant city described as follows, to wit: (describing certain lots in said) city). It further alleges, upon information and belief, that the defendant city made an assessment for special benefits-against said lands for the purpose of improving Eifth street within said city; that said assessment was by a resolution of the common council of the defendant city confirmed; that thereafter the work of improving said street was let to a contractor, and after the performance of the contract the board' of public works of the defendant city issued to such contractor, in payment for work done in front of said lands, its certificate for $478.02, containing among other things a description *41of said lands as tbe lands against wbicb said work was chargeable, and said special assessment was carried ont at said sum on tbe tax roll of tbe defendant city for tbe year 1908 against all of said lands. It then alleges that tbe lands described in tbe complaint are part and parcel of plaintiffs right of way in defendant city, and its said line of railway was at tbe time of tbe assessment operated as part and parcel of plaintiffs system of railways for public use and tbe said lands constituted tbe necessary right of way; that tbe plaintiff has not paid said certificate for tbe reason that it is advised by its counsel and verily believes that under tbe facts stated in tbe complaint none of said lands described were by law liable to assessment for special benefits. It further alleges, upon information and belief, that tbe defendant *J. V. Bchoenecher, Jr.,*as treasurer of tbe defendant city, notwithstanding tbe provisions of cb. 425, Laws of 1903, threatens that be will on tbe 1st day of Eebruary, 1909, sell tbe said lands described, for tbe pur-' pose of collecting tbe amount of said certificate.

Tbe complaint also contains a second cause of action identical with tbe first, except that it describes other lots and states a different amount of taxes assessed against them.

Tbe defendants demurred separately to each of tbe several causes of action set forth in tbe complaint, on tbe ground that it appeared on tbe face thereof that tbe same did not state facts sufficient to constitute a cause of action. Tbe demurrers were sustained and plaintiff appealed.

Eor tbe appellant there was a brief by *O. H. Van Alstine*and *H. J. Killilea,*and oral argument by *Mr. Van Alstine.*

Eor tbe respondents there was a brief by *Daniel W. Hoan,*city attorney, and *W. H. Timlin, Jr.,*special assistant city attorney, and oral argument by *Mr. Timlin.*

Vinje, J.

Tbe complaint alleges that plaintiff is tbe owner of tbe lots described; that they are part and parcel of its right of way; that its line of railway was at tbe time of tbe assessment operated as part and parcel of its system of rail*42way for public use, and that the said lots constituted necessary right of way. Under this allegation it must be held that plaintiff is the owner in fee of the lots described and not of a mere easement or right of way over them, though they are used only for a right of way. The question, therefore, arises: Are lands of a railway company, used solely for a right of way, subject to special assessments for street improvements *%*Counsel for plaintiff contend they are not, because under the laws of this state and the charter of the defendant city special assessments are limited by and cannot exceed the special benefit which the abutting property receives by reason of the improvement, and in *Chicago, M. & St. P. R. Co. v. Milwaukee,*89 Wis. 506, 62 N. W. 417, this court 'held as a matter of law that the necessary right of way of a railway company is not specially benefited by the improvement of a street in front of it. They further contend that the rule of law announced in that case has not been changed by the enactment of ch. 425, Laws of 1903 (sec. *1210k,*Stats.: Supp. 1906), which provides :

> “The property of every county, city, village, town and school district, within this state, and of every corporation, company or individual operating any railroad or street railway, telegraph, telephone, electric light or power system, or doing any of the business mentioned in chapter 51 of the Statutes of 1898, and of every other corporation or company whatever, shall be in all respects subject to all special assessments for local improvements in the same manner and to the same extent as the property of individuals.”

They argue that the act does not specifically prescribe the steps to be taken in making special assessments, but simply provides that the property of all corporations “shall be in all respects subject to all special assessments for local improvements in the same manner and to the same extent as the property of individuals,” and hence that the statute was not meant to stand alone, but only in connection with other statutes that point out the steps to be taken in making special assessments; *43that it is only when some other statutes authorize special assessments and point out the mode and manner of making them that the property of railway companies is subject thereto under those statutes to the same extent as is the property of individuals. But since the property of the latter is liable only to the extent of benefits, the right of way of railway companies is liable only to the same extent. And if, as held in *Chicago, M. & St. P. R. Co. v. Milwaukee,*89 Wis. 506, 62 N. W. 417, right of way of a railway company is not at all benefited by the improvement of a street on which it abuts, it is therefore not in any manner or to any extent liable*for special assessments for such improvement, notwithstanding the enactment of ch. 425, Laws of 1903. Such, in brief, as we understand it, is the argument of plaintiff on this point.

It is true the decision in *Chicago, M. & St. P. R. Co. v. Milwaukee*was based in part upon the fact that it could be said as a matter of law that the right of way of a railway company was not benefited by the improvement of the street on which it abuts, but the decision rested chiefly upon the ground that, in the absence of an express statute authorizing an assessment of the tracks and necessary right of way of a railway company, the assessment and sale thereof for benefits by local improvements could not be sustained, and it was held that in subd. 14, sec. 1038, R. S. 1878, exempting ^ail-road property from taxation, the clause “except that the same shall be subject to special assessments for local improvements in cities and villages,” was not a sufficiently specific declaration of legislative intent to subject it thereto, as the section was intended merely to confine the exemption to the subject of general taxation. So it will be perceived that if the court had found in the statutes a sufficiently clear declaration of legislative intent to subject railroad property to special assessments, the decision would have been otherwise. That case was decided in 1895. Subsequently the legislature enacted ch. 425, Laws of 1903 (sec. 1210&, Stats.: Supp. 1906), and *44in *Chicago, M. & St. P. R. Co. n. Janesville,*131 Wis. 7, 118 N. W. 182, tbis court bad occasion tq consider tbe effect thereof. It referred to tbe case of *Chicago, M. & St. P. R. Co. v. Milwaukee,*89 Wis. 506, 62 N. W. 417, and used tbis language with reference thereto and tbe enactment of tbe subsequent statute:

> “In tbe discussion of tbe question it was said that tbe principle is established that ‘such a result cannot be effected under tbe power of taxation *without express legislative authority,*and that general language in such statutes will not be held to authorize such a result.’ Since tbe decision of that case, however, tbe legislature has in no uncertain terms made express provision for tbe levying of such assessments against' such property. Cb. 425, Laws of 1903, provides, among other things, that tbe property of railroad corporations ‘shall be in all respects subject to all special assessments for local improvements in tbe same manner and to tbe same extent as tbe property of individuals.’ Tbis is an express and unambiguous declaration by tbe legislature upon a subject over which it has full power, which closes tbe question.”

While tbe language was used in a case that did not from necessity involve tbe question, because tbe assessment for the sewer was also sustained under tbe exercise of tbe police power irrespective of special benefits, still it correctly expresses the purpose and power of tbe legislature in tbe enactment of cb. 425, Laws of 1903. What was said in *Chicago, M. & St. P. R. Co. v. Milwaukee, supra,*to tbe effect that it is clear as a matter of law that a railway company’s right of way is not benefited by tbe improvemept of tbe street upon which it abuts, must be deemed to be overruled. Such legislation is in accord with tbe result in many well considered cases, and is in harmony with tbe rule approved by tbe supreme court of tbe United States that on tbe question of benefits or no benefits tbe land shall be considered simply in its general relations and apart from its particular use. *Louisville & N. R. Co. v. Barber A. P. Co.*191 U. S. 430, 25 Sup. Ct. 466; *Ill. Cent. R. Co. v. Decatur,*147 U. S. 190, 13 Sup. Ct. 293; *45*Seattle v. Seattle & M. R. Co.*50 Wash. 132, 96 Pac. 958; *Burlington & M. R. R. Co. v.*Spearman, 12 Iowa, 112; *Heman C. Co. v. Wabash R. Co.*206 Mo. 112, 104 S. W. 67, and cases cited in *Chicago, M. & St. P. R. Co. v. Milwaukee,*89 Wis. 506, at page 517, 62 N. W. 417, and note to same in 28 L. R. A. 249.

It was decided in *Weeks v. Milwaukee*10 Wis. 242, that special assessments by municipalities do not come within the rule requiring uniformity of taxation, because art. XI, sec. 3, of the constitution authorizes the "legislature to restrict the power of assessments of cities, and that the legislature is the sole judge of the extent to which such power of levying special assessments may be exercised by cities. Acting strictly within that power it has declared that the property of all corporations “shall be in all respects subject to all special assessments for local improvements in the same manner and to the sanie extent as the property of individuals.” Such a declaration, interpreted in the light of judicial decisions and recent legislative enactments, can mean only what its plain language imports, namely, that every species of real property owned by corporations shall pay its proportionate share of special assessments for local improvements in the same manner, and to the same extent as the property of individuals, irrespective of the particular use to which such real property may be put.

*By the Court.*— Order affirmed.

Timlin, J., took no part.