Loomis v. Chicago & Northwestern Railway Co.

141 N.W. 386, 31 S.D. 408, 1913 S.D. LEXIS 148

• Court: South Dakota Supreme Court
• Decided: May 6, 1913
• Status: Published

Opinions

McCOY, J.

There are two appeals in this case; one by plaintiff and one by defendant. During the year 1907 the city of Red-field constructed a sewerage and sanitary drainage system, and assessed the cost thereof against abutting property in proportion to the number of feet fronting on either side of such -sewer. The defendant owns certain grounds, used principally for depot, warehouse, track yards, and main line roadbed purposes, which is -crossed by a portion of this sewer system. The said -property of defendant was attempted to be specially assessed to pay its proportionate front foot share of the cost of the construction of said sewer. The defendant not having paid said assessment, and not having entered into a contract to pay the same in installments, the city authorities of Redfield issued interest-bearing certificates of assessment under the provisions- of chapter 213, Laws of 1903, for the respective amounts assessed- -against the several parcels of said grounds of defendant abutting and fronting on said sewer, and which certificates of assessment against the property, of defendant were issued to one Olding, the contractor who constructed said 'sewer, and thereafter the said Olding assigned said certificates to plaintiff as trustee for the Merchants’ Bank. Plaintiff brings this action to foreclose the statutory lien, claimed to exist b)r virtue of the law, against said property of defendant on account of said special assessments.

There were three certificates issued to said Olding, and assigned to plaintiff against the said ‘property of 'defendant,. each of which is made to constitute a separate cause of action by plaintiff’s complaint, seeking to foreclose the lien thereof against the said property of defendant. The certificate of assessment mentioned in the first cause of action is in substance as follows: “I hereby certify that the sum of $351.05 has been levied and assessed by the city of Redfield against lot — west 60 feet of lot 11, and lots 12, 13, 14, and 15 of warehouse lots C. & N. W. R. R. Company, which said lots abut upon the street or streets in which said sewer has been constructed from the intersection of Humboldt avenue and Pope St. to the intersection of Pope and Emerson Sts. thence north one-half block along Emerson St. and that such assessment has been duly certified to the county auditor of Spink county for the purpose of collection, and. that this certificate is a lien upon such lot and may be foreclosed as provided by law and that the same is hereby issued to A. G. Olding, the contractor for the construction of said sewer, and the treasurer of the city of Red-' field is hereby authorized and directed upon the presumption and surrender of this certificate to pay to said Olding, his heirs or assignees the said sum of $351.05 with interest at 6 per cent, per annum, which certificate is under the hand and seal of the city áliditor of Redfield.” The certificates mentioned in the second and third causes of action are the same as in the first, with the exception that the certificate mentioned in the second cause of action recites that it is for $555.84 assessed against land of the Chicago & Northwestern Railroad 'Company- in the city of Redfield, which said land lies east of and abuts upon said sewer which has been constructed from the intersection of Pope and Emerson streets south across the Chicago & Northwestern Railroad land to •the alley between said railroad land and Oregon avenue, University addition to Redfield; and thé certificate mentioned in the third cause of action recites that it is for $677.62 assessed against land of the Chicago & Northwestern Railroad Company, which land lies west of and abuts upon said sewer from the intersection of Pope and Emerson streets south across the Chicago & Northwestern Railroad land to the alley between said railroad land and Oregon avenue, University addition to Redfield.

Defendant denied generally that any lawful procedure Uvas had-to establish said sewer system, denied that plaintiff is the owner of said certificates, and alleged that long prior to the commencement of this action the city of Redfield paid to said Olding the several amounts with interest mentioned in said certificates, thereby redeeming and satisfying the same, denies, that defendant has or ever will receive any benefits whatever from the construction of said sewer, but that the same is a damage to' the property of defendant, and was onfy constructed abutting to and across the property of defendant for the purpose of obtaining an outlet for such sewer.' The defendant admitted that it is the owner of the real estate mentioned and described in the complaint.

The trial court made findings of fact and conclusions of law in favor of defendant upon the first cause of action set out in plaintiff’s complaint, from which findings plaintiff appeals. The court made findings and entered judgment in favor of plaintiff upon the second and third causes of action, set forth in plaintiff’s complaint, from which findings and judgment defendant appeals, assigning various errors and the insufficiency of the evidence to justify^ such findings. We will first consider the appeal taken 'by defendant.

[1] The appellant, among other things, contends that the attempted assessment of appellant’s right of way is void, 'because not sufficiently described, and not limited to one hundred fifty feet in depth. The assessment roll ordinance, fixing the amount levied and describing the land against which the same were levied, describes the land's covered by the certificates mentioned in - the second and third causes of action mentioned in plaintiff’s complaint substantially as follows: Against the property in the city of Redfield, S. D., abutting on Emerson street, in which said sewer is being, has been, or is about to be, constructed in the sum and against the particular lots or parcels of land with the owner’s. name as follows: Chicago & Northwestern Railway Company right of way and railway lands west side of Emerson street, Chicago & Northwestern Railway Co., $677.62; Chicago & Northwestern Railway Company right of way -and railway lands east side of Emerson street, Chicago & 'Northwestern Railway Company, $555.84. We are of the opinion that these descriptions are not sufficiently definite and certain. . If these descriptions were limited -solely to right of way, we might be inclined to the view that they were sufficient. It seems to be generally, held that a description which informs the person to be assessed with reasonable certainty as to what property is intended to be included within such assessment is sufficient, and that what would be sufficient description in a deed of conveyance would also be sufficient in a. special assessment levy. The test of sufficiency seems to be that if a person acquainted with surveying could find and identify the property from the description given without the aid of any further descriptive evidence. We are inclined to the view that a deed describing the property as the right of way of the Chicago & Northwestern Railway Company on the ea-st si-de of Emerson 1 treet in the city of Redfield, S. D., would be sufficient. The statute limiting the depth of special assessment to 150 feet from the abutting street line, of which statute appellant was bound to know, would be taken into consideration in identifying the land covered by special assessment. Such statute is a legal monument specifjdng the extent of special assessment districts. A-s applied to the right of way alone, the descriptions given definitely notified ‘defendant of the location of the frontage of the street line, and the statute, of which he was bound -to know, informed him of the depth of thq assessment. In the absence of such a statute, if the description in question, as a matter of fact, as claimed by defendant, contained no outside terminals, but was left open without any description as to either end, it, of course, would be held-indefinite. There are many cases so holding. Cleveland, C., C. & St. L. Ry. v. O’Brien, 24 Ind. App. 547, 57 N. E. 47. Some of these -cases specifically state that there is no method furnished by statute ’ for limiting the depth of the assessment. Diggins v. Hartshorne, 108 Cal. 154, 41 Pac. 283. Some statutes provide that the assessment shall extend to the center o-f the block, and under such statutes, when the improvement runs lengthwise of the lots, it is held that the assessment-extends to the. center of the block, and that it is a matter of surveying to ascertain the 'center of the block and extent of assessment. But in this case the outside terminals of the right of way are not left open and indefinite. The description confines the right of way to the city of Redfield, and the outside terminals would only extend to the city limits. As to right of way, the description is complete as to outside terminals just as much so as the description mentioned in South Chicago Ry. Co. v. Chicago, 196 Ill. 490, 63 N. E. 1046. The fight of way description is within the rule that that is certain which can be made certain. The description given furnishes the means of identification. Ford v. Ford, 24 S. D. 644, 124 N. W. 1108. From the description thus given without the aid of any other descriptive evidence, a surveyor could identify the amount of right of way covered by such assessment. It seems to be generally held that when part of a tract, the whole of which is correctly described, is subject to special assessment, and within the assessment district, a levy on the entire tract will not invalidate the levy. 28 Cyc. 1150. The special assessment will only extend to the limits of the taxing district. This is the precise situation in this case with reference to the right of wav description. A larger extent of rght of way is described than is included in the special assessment district.

The nearest approach in principle to the question here involved we have been able to discover is in the case of Voris v. Pittsburg Plate Glass Co., 163 Inch 599, 70 N. E. 249. An Indiana statute provides that platted and unplatted lands shall be subject to special assessment within 150 feet of the fronting street line, and that the first 50 feet next to the street line shall be primarily liable for the assessment, and that secondary liability shall attach between the outside of the first 50-fook limit and the outside of. the 150-foot limit. In construing this statute the court said that owners of back lots, extending- beyond the first 50-foot limit, and beyond the 150-foot limit, were bound to know the law, and were bound to know what part of their lands were within the limits of the taxing district to -the extent indicated by he laiw. As applied to the case at bar, the outside limits of the taxing district for the construction of the sewer in question at the place where the same crossed appellant’s right of way was 150 feet either way from the fronting street .line on either side of Emerson street. This limit was fixed by the -statute of which appellant was bound to know.

I-t ydll be observed that the descriptions given specify “right of way and railway lands.” The evidence -shows that appellant has other railway lands in the city of Redfield than right of way. There is nothing in this description to indicate whether such “railway lands” are platted or unplatted, and herein -enters a matter of much indefiniteness and uncertainty. From the evidence preserved in the record, it appears that'on the -east side of Emerson street and abutting on said improvement and within said special assessment district appellant -owns other land not included in its right of way. The special assessment is in a lump sum against the right of way and ■ “railway lands.” What the extent of this other “railway land” is, or how much of such assessment is chargeable thereto, is not made known. On the west side of Emerson -street there are other lands fronting on the street line, he ownership of which is not shown. It may or may not be railway land, not right of way. The description of the west side includes “railway" land” in addition to right of way. How much is not shown. The special assessment for the west side is in a lump ■sum. Erom the descriptions given it would not be possible for an expert surveyor ,to identify the “railway land” included in these descriptions or separate the same from the “right of way.”

[2] The -trial court found in relation to the first -cause of action that the certificate of assessment was paid by the city of Redfield, and that -said certificate was still in the hands of plain-tiff, but that plaintiff is not entitled to recover on -such certificate. From this finding and conclusion plaintiff appeals, contending that plaintiff after such payment became the trustee of the city of Redfield, instead of trustee for the bank, that'the effect of such payment by the city of Redfield was only to- change the beneficiary of plaintiff’s trusteeship without affecting the trust, and that plaintiff should have been permitted to maintain this action as trustee for the -city of Redfield. We are of the opinion that this contention of plaintiff is not well founded; that, although the plaintiff is in possession ofysaid certificate, his possession is bare naked possession or'custodian without any legal rights attaching to such possession. If this certificate in the first instance had been assigned direct to the bank, instead of to plaintiff as trustee, and said payment made to the bank as it was, and the bank after such payment had retained possession of said certificate, still the bank, under such circumstances, would not 'have then had -sufficient interest therein to entitle it to maintain a suit on the certificate as the real party in interest. Upon the question as to whether or not there was in fact such a payment of said certificate as would cancel and fully satisfy the same as against the city of Redfield, we express no opinion. The opinion of this branch of the -case i-s based solely on the ground that plaintiff cannot maintain the first cause of action set out in the complaint because plaintiff is not the real party in interest. (

The judgment and order appealed from by the defendant appellant are reversed.

The findings and conclusions appealed from by plaintiff are affirmed.