Chicago, Milwaukee & St. Paul Ry. Co. v. Poland

172 P. 541, 54 Mont. 497, 1918 Mont. LEXIS 46

• Court: Montana Supreme Court
• Decided: March 25, 1918
• Docket: No. 3,882
• Status: Published

Opinion

MR. JUSTICE SANNER

delivered the opinion of the court.

Appeal from a judgment enjoining the sale of certain property for a delinquent special improvement district assessment. The material facts are: That under the authority of Chapter 89, Session Laws 1913, the city of Lewistown created special improvement district No. 9 for the purpose of paving Main street to where it intersects Miller street and the Chicago, Milwaukee & St. Paul Railway crossing at that point; the exterior boundaries of the district include such intersection and they mark the end of the paving in that direction; the basis adopted for apportioning the cost of the improvement was front footage and the respondent declined to pay the assessment levied against the property here involved; that property is in and is a portion of Main street, but it is impressed with an easement in favor of the respondent, for railway right of way, and the question presented is whether this tract is subject to the sale herein proposed. The situation is shown by the following sketch, the tract A-B-C-D being the bone of contention:

A noticeable feature of the ease is that the subject of the proposed sale is the tract A-B-C-D itself — not the easement or right of way enjoyed by the respondent; and the respondent contends — as the district court held- — that the sale is not permissible because (a) neither the tract itself nor the respondent’s interest therein borders or abuts upon the street; (b) the property assessed and sought to be sold is not owned or controlled by the respondent; (c) the continuous service of a railroad is of such paramount public importance that a portion of the right of way cannot be sold to pay an assessment of this kind.

By section 14 of the Act relating to special improvement districts (Chap. 89, su-pra) one of two methods of assessment for paying the cost of the improvements may be pursued, vis., by area, the city assuming or not, as it chooses, the cost of the street and alley intersections, or by foot frontage, apportioning the cost to each lot or parcel of land within the district “bordering or abutting upon street or streets whereon or wherein the improvement has been made.” The city chose the latter method, and if, pursuing it, the property here involved could be lawfully assessed, we see nothing in the fact that it is occupied by a railway which would necessarily prevent its sale upon failure to pay the assessment. (Northern Pac. Ry. Co. v. Richland County, 28 N. D. 172, Ann. Cas. 1916E, 574, L. R. A. 1915A, 129, 148 N. W. 545.) What use the purchaser could make of it need not be considered.

The choice allowed the municipality by the provisions of section 14 is apparently unrestricted; but in reality this is not so. For the purposes of the Act, the term “lot or parcel of land” is deemed to include a railroad right of way held as an easement; so, doubtless, the respondent’s right of way was subject [1] to assessment. But the easement — assuming that it and not the tract is offered for sale — is not and cannot be anything more than a mere incorporeal hereditament, a naked right of passage which the respondent shares with the general public, because it is impressed upon an open street, the fee to which is in the public; hence to say that this easement could be assessed is an altogether different thing from saying that it could be assessed in the particular mode here pursued. The available method of assessing any “lot or parcel of land,” however defined, is of necessity limited by its character or situation; and just how an easement such as this can be said to border or abut upon the street or anything else, it is impossible to conceive. Its situation is similar to that of a lot located away from Main street. Such a lot could have been included in the district and assessed for part of the cost of paving, but- not in this way; so here the nature of the property subject to the assessment precluded the use of the front foot method. (South Park Commrs. v. Chicago B. & Q. R. Co., 107 Ill. 105.)

Considering, however, that it was the tract itself — not the easement — which was assessed, and assuming that it could be assessed upon some basis, then to support this particular levy we should be obliged to hold that part of the street itself abuts upon the street, and this involves — as the trial judge remarked— “a legal solecism.” (South Park Commrs. v. Chicago B. & Q. R. Co., supra; Holt v. City of East St. Louis, 150 Ill. 530, 37 N. E. 927.)

Finally, realizing that the tract itself is assessed and offered [2] for sale, the fact that it is part of the street becomes an insuperable obstacle. As such it is not and cannot be “property owned or controlled” by the respondent; it is owned by the public, under the exclusive control of the city and thus not the kind of “lot or parcel of land” authorized by the Act to be assessed. Nor is there anything in the Act to warrant the view that the city can be authorized to sell a part of its own street for the purpose of paying an assessment of this character.

We are convinced that the conclusion of the district court was correct and, accordingly, the judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.