Detroit, Grand Haven & Milwaukee Railway Co. v. City of Grand Rapids

63 N.W. 1007, 106 Mich. 13, 1895 Mich. LEXIS 924

• Court: Michigan Supreme Court
• Decided: July 2, 1895
• Status: Published

Opinions

Grant, J.

The defendant city opened North, Lafayette street across the complainant’s right of way. The railroad bed, which is 100 feet wide, crosses the street at an angle of less than 45 degrees. An assessment district was established by the common council, on which was assessed the cost of the improvement, under a charter requiring assessments according to benefits received. The defendant included in this district the complainant’s right of way to the distance of 100 feet on each side of the street. It divided this into three parcels, fixing the values at $1,000, $480, and $600, respectively. More than one-twentieth of the entire cost was assessed to complainant. The assessment on the $1,000 piece was $569; on the $480 piece, $373; and on the $600 piece, $68. It thus appears that on one piece nearly SO per cent, of its entire value was assessed as benefits, and on another piece more than 50 per cent.

1. The first question is settled by the case of Lake Shore & M. S. R. Co. v. City of Grand Rapids, 102 Mich. 374, which holds that railroad property cannot be sold for these assessments.

2. The right of way so assessed contains the main track and one side track. It has nothing else upon it, and is used for no other purpose. It has already been dedicated to a public use, and the question is presented whether a railroad right of way can be assessed by municipal corporations for public improvements. So far from being any benefit, it is established by the evidence that the opening and paving of the street were a damage to the complainant. A right of way cannot be benefited >by the opening and paving of a street across it. None of the buildings of the complainant are within two blocks of this crossing. We can see no benefits, immediate or prospective, to the complainant. The division of the right of way into three parcels was arbitrary, as were also the valuations and supposed benefits. The point is so clearly and concisely stated by the supreme court of Pennsylvania that we quote the opinion in City of Philadelphia v. Railroad Co., 33 Pa. St. 43:

“The municipal authorities paved the Gray’s Ferry road for a considerable distance, at a place where it lies side by side with the defendant’s railroad, and now seek to charge them with half of the cost of it; but they cannot do it. Their claim has .no foundation either in the letter of the law or in its spirit, nor in the form of the remedy. Not in the letter, because the defendants do not own the land sought to be charged, and have only . their right of way over it. Not in the spirit, because the . paving laws are means of compulsory contribution among the common sharers in a common benefit, and as a railroad cannot, from its very nature, derive any benefit from the paving, while all the rest of the neighborhood may, we cannot presume that the compulsion was intended to foe applied to them. Not in the form of the remedy, because the execution for this sort of claim is levari facias, a writ not commonly allowed against corporations, and which would hardly produce much when directed against a public right of way. It would foe strange legislation that would authorize the soil of one public road to be taxed, in order to raise funds to make or improve a neighboring one.”

The same doctrine is held in Junction R. Co. v. City of Philadelphia, 88 Pa. St. 424; State v. City of Elizabeth, 37 N. J. Law, 331; New York & H. R. Co. v. Town of Morrisania, 7 Hun, 652; City of Bloomington v. Railroad Co., 134 Ill. 451; City of Bridgeport v. Railroad Co., 36 Conn. 255; South Park Com’rs v. Railroad Co., 107 Ill. 105; New York & N. H. R. Co. v. City of New Haven, 42 Conn. 279.

Decree is reversed, and decree entered in this court for complainant in accordance with the prayer, with the costs of both courts.

Long and Montgomery, JJ., concurred with Grant, J.