COOPER, C.
Action to enjoin a sale of a portion of plaintiff’s right of way. A temporary injunction was granted, which by the judgment was made perpetual. This appeal is from the order granting the injunction and from the judgment.
The plaintiff is a railroad corporation operating a railroad about four hundred and eighty-seven miles in length in and through five counties in the southern part of the state. A portion of its main line, running from Los Angeles to Barstow, is located and operated fin Los Angeles County, and 1,012 feet of the right of way of this line abuts on Pasadena Avenue in the city of Los Angeles. The city proceeded to make certain improvements on Pasadena Avenue under the provisions of the statutes authorizing the making of such improvements and the charging Of the costs to abutting property. By the proceedings of the city council, the cost of the improvements was to be assessed upon abutting property upon the front-foot method provided by statute. An assessment for the purposes of said improvement was attempted to be made upon a small portion of plaintiff’s right of way, consisting of an irregular strip about nine thousand five hundred feet in length and from sixty to one hundred feet in width, which attempted assessment described the property as follows: “Commencing at N. Wi intersecting point of Avenue 33 and the right of way of the Southern California Railway Company, thence meandering in a northerly direction 9635 min to Avenue 50, thence along the S. line of Avenue 50 62 min., thence meandering in a southerly direction 9566 min. to Avenue 33, thence W. 60 along the N. line of Avenue 33 to beginning. Being the Southern California Railway right of way between Avenues 33 and 50.”
Plaintiff refused to pay the amount of the attempted assess
ment, and a bond was issued by the city and sold to appellant Pox. The bond described the property assessed the same as in the above description in the assessment, except the words “Being the Southern California Railway right of way between Avenues 33 and 50” were omitted, and instead thereof the words “Owner is the Southern California Railway Company, a corporation,” were added. The notice of sale described the property as it is described in the bond. Plaintiff commenced this action to enjoin the sale, and, after setting forth the facts, alleged in its complaint “that unless restrained from so doing, the said defendant W. H. Workman, as such city treasurer, at the request of the defendant Pox, will, on Tuesday the 14th day of January, 1902, proceed, under said advertisement and notice of sale, to sell, or attempt to sell, that portion of the right of way of the plaintiff herein above described, and upon which it is operating a railroad, as aforesaid, in accordance with said notice, for the purpose of satisfying said bond.”
The complaint further alleged that the threatened sale would cause it great and irreparable injury and “create a cloud upon the title of the plaintiff to said portion of said right of way, and to its right to use and occupy the same as and for its business of a common carrier of passengers and freight.”
The defendants filed a general demurrer to the complaint, which was overruled, and they declined to answer.
We are of opinion that the complaint states facts sufficient to constitute a cause of action. It states that the assessment was “upon that portion of the plaintiff’s right of way herein described.” The assessment concludes with the words of identification—“Being the Southern California Railway right of way between Avenues 33 and 50.” It was evidently the intention to assess and sell the right of way as described by metes and bounds in the assessment.
The statute in regard to assessments for the improvement of streets provides for an assessment upon the lots and lands fronting on the improved portion of the street. (Vrooman Act, sec. 7.)
There is no authority for making an assessment upon a right of way or for selling the same. A railroad company is a quasi-public corporation in which the public is interested. It holds
a franchise from the state and must operate its road or forfeit its franchise. A part of its right of way cannot be sold on execution or for a street assessment. The decisions are not in harmony on the question, but we think the best-considered cases hold that such right of way cannot be sold to satisfy a street assessment. In
Chicago etc. Ry. Co.
v.
City of Milwaukee,
89 Wis. 509, the question is ably discussed, and the court said: “Whether the track and right of way of a railroad company is subject to assessment for local improvements on the ground of special benefits, under the language of statutes couched in general terms providing for such assessments, is a question upon which the courts have not been agreed. The system and policy of each state enter largely into the question, and give to jit a local character. By the charter of Milwaukee, the improvement of Commerce Street was chargeable to' and payable by the lots fronting or abutting upon such street ... to the amount which such improvement shall be adjudged by the board of public works to benefit such lots; and an Assessment of the amount is provided for which, when confirmed by the council, its collection may be enforced in case of non-payment by a sale and conveyance of the lots so assessed. (City Charter, Laws 1874, c. 184, subsec. 7, pars. 3, 7.) So much of the lots in question as were occupied by the tracks of the railroad and supporting banks, and used for right of way purposes; had been devoted and dedicated to uses in which, the public had an important interest of a probable perpetual duration; and to enforce an assessment against such right of way and track, extending about half a mile in distance, by a sale and conveyance, would necessarily dismember and break up the entirety and utility of the road as a line of. travel and commercial intercourse, and interfere with and impair the paramount interests which the public have in it for these purposes. The property of the corporation in its road and appurtenances essential to its operation and use, annexed; to the franchise of the company to maintain and operate its road, is an entirety, and is thus charged, in the hands of the company, with an important trust in favor of the public, though the property in all other respects is essentially private, and operated for private gain. Public policy would seem to forbid a severance and segregation of its several special or particular parts, essential
to the
exercise of the franchises and the use and operation of the road, in forced sale upon legal process, or for an assessment.”
In
Louisville etc. R. R. Co.
v.
Bonney,
117 Ind. 501, the court said: ‘‘ The other feature of the case presents a question of much greater difficulty. According to the established rule of the common law, which controls the current of modern authority, the franchises of a corporation—mere incorporeal hereditaments—were not subject to seizure and sale upon execution, in the absence of express statutory provisions authorizing the sale and prescribing the method of transfer.
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COOPER, C.
Action to enjoin a sale of a portion of plaintiff’s right of way. A temporary injunction was granted, which by the judgment was made perpetual. This appeal is from the order granting the injunction and from the judgment.
The plaintiff is a railroad corporation operating a railroad about four hundred and eighty-seven miles in length in and through five counties in the southern part of the state. A portion of its main line, running from Los Angeles to Barstow, is located and operated fin Los Angeles County, and 1,012 feet of the right of way of this line abuts on Pasadena Avenue in the city of Los Angeles. The city proceeded to make certain improvements on Pasadena Avenue under the provisions of the statutes authorizing the making of such improvements and the charging Of the costs to abutting property. By the proceedings of the city council, the cost of the improvements was to be assessed upon abutting property upon the front-foot method provided by statute. An assessment for the purposes of said improvement was attempted to be made upon a small portion of plaintiff’s right of way, consisting of an irregular strip about nine thousand five hundred feet in length and from sixty to one hundred feet in width, which attempted assessment described the property as follows: “Commencing at N. Wi intersecting point of Avenue 33 and the right of way of the Southern California Railway Company, thence meandering in a northerly direction 9635 min to Avenue 50, thence along the S. line of Avenue 50 62 min., thence meandering in a southerly direction 9566 min. to Avenue 33, thence W. 60 along the N. line of Avenue 33 to beginning. Being the Southern California Railway right of way between Avenues 33 and 50.”
Plaintiff refused to pay the amount of the attempted assess
ment, and a bond was issued by the city and sold to appellant Pox. The bond described the property assessed the same as in the above description in the assessment, except the words “Being the Southern California Railway right of way between Avenues 33 and 50” were omitted, and instead thereof the words “Owner is the Southern California Railway Company, a corporation,” were added. The notice of sale described the property as it is described in the bond. Plaintiff commenced this action to enjoin the sale, and, after setting forth the facts, alleged in its complaint “that unless restrained from so doing, the said defendant W. H. Workman, as such city treasurer, at the request of the defendant Pox, will, on Tuesday the 14th day of January, 1902, proceed, under said advertisement and notice of sale, to sell, or attempt to sell, that portion of the right of way of the plaintiff herein above described, and upon which it is operating a railroad, as aforesaid, in accordance with said notice, for the purpose of satisfying said bond.”
The complaint further alleged that the threatened sale would cause it great and irreparable injury and “create a cloud upon the title of the plaintiff to said portion of said right of way, and to its right to use and occupy the same as and for its business of a common carrier of passengers and freight.”
The defendants filed a general demurrer to the complaint, which was overruled, and they declined to answer.
We are of opinion that the complaint states facts sufficient to constitute a cause of action. It states that the assessment was “upon that portion of the plaintiff’s right of way herein described.” The assessment concludes with the words of identification—“Being the Southern California Railway right of way between Avenues 33 and 50.” It was evidently the intention to assess and sell the right of way as described by metes and bounds in the assessment.
The statute in regard to assessments for the improvement of streets provides for an assessment upon the lots and lands fronting on the improved portion of the street. (Vrooman Act, sec. 7.)
There is no authority for making an assessment upon a right of way or for selling the same. A railroad company is a quasi-public corporation in which the public is interested. It holds
a franchise from the state and must operate its road or forfeit its franchise. A part of its right of way cannot be sold on execution or for a street assessment. The decisions are not in harmony on the question, but we think the best-considered cases hold that such right of way cannot be sold to satisfy a street assessment. In
Chicago etc. Ry. Co.
v.
City of Milwaukee,
89 Wis. 509, the question is ably discussed, and the court said: “Whether the track and right of way of a railroad company is subject to assessment for local improvements on the ground of special benefits, under the language of statutes couched in general terms providing for such assessments, is a question upon which the courts have not been agreed. The system and policy of each state enter largely into the question, and give to jit a local character. By the charter of Milwaukee, the improvement of Commerce Street was chargeable to' and payable by the lots fronting or abutting upon such street ... to the amount which such improvement shall be adjudged by the board of public works to benefit such lots; and an Assessment of the amount is provided for which, when confirmed by the council, its collection may be enforced in case of non-payment by a sale and conveyance of the lots so assessed. (City Charter, Laws 1874, c. 184, subsec. 7, pars. 3, 7.) So much of the lots in question as were occupied by the tracks of the railroad and supporting banks, and used for right of way purposes; had been devoted and dedicated to uses in which, the public had an important interest of a probable perpetual duration; and to enforce an assessment against such right of way and track, extending about half a mile in distance, by a sale and conveyance, would necessarily dismember and break up the entirety and utility of the road as a line of. travel and commercial intercourse, and interfere with and impair the paramount interests which the public have in it for these purposes. The property of the corporation in its road and appurtenances essential to its operation and use, annexed; to the franchise of the company to maintain and operate its road, is an entirety, and is thus charged, in the hands of the company, with an important trust in favor of the public, though the property in all other respects is essentially private, and operated for private gain. Public policy would seem to forbid a severance and segregation of its several special or particular parts, essential
to the
exercise of the franchises and the use and operation of the road, in forced sale upon legal process, or for an assessment.”
In
Louisville etc. R. R. Co.
v.
Bonney,
117 Ind. 501, the court said: ‘‘ The other feature of the case presents a question of much greater difficulty. According to the established rule of the common law, which controls the current of modern authority, the franchises of a corporation—mere incorporeal hereditaments—were not subject to seizure and sale upon execution, in the absence of express statutory provisions authorizing the sale and prescribing the method of transfer. It follows as a natural sequence that lands, easements, or things essential to the existence of the corporation and the execution of its corporate duty, and without which its franchise would be of no practical use, cannot be levied upon and sold on execution at law, so as to detach them from the franchise, and thus destroy its use.”
The court of appeals of Missouri in
Sweaney
v.
Kansas City etc. Ry. Co.,
54 Mo. App. 266, said: “The sole question is this: Does the law authorize the enforcement of a special tax bill for a street improvement against a detached right of way ? . . . The tax bilis in suit were issued on the theory that the land along the line of the graded street, and used by a railroad as its right of way, is chargeable with such local improvements just as other adjacent property. This, too, is the position taken, and so forcibly urged on us by plaintiff's counsel. But however cogent the argument, and however reasonable and just may be the position contended for, yet under the repeated decisions of our supreme court, in cases which we deem analogous, we must hold that plaintiff cannot maintain this suit—which has for its aim and purpose the carving out, sale, and conveyance of a portion only of defendant’s right of way. Admitting the terms ‘adjoining lands,’ ‘all the property on both sides,’ etc., appearing in the Kansas City charter, to be sufficiently general to embrace the railroad right of way, but even then we are met with the doctrine of our adjudicated cases that a lien will not be enforced against a mere fractional part of a railroad right of way, except it be specially authorized by the legislature in language not to be doubted.” (See
City of Philadelphia
v.
Philadelphia etc. R. R. Co.,
33 Pa. St. 41;
City of Allegheny
v.
Western Pacific R. R. Co.,
138 Pa. St. 375;
Bridgeport
v.
New York etc. R. R.
Co.,
36 Conn. 255;
Detroit
etc.
Ry. Co.
v.
City of Grand Rapids,
106 Mich. 13.
)
It is not necessary to decide in this case as to whether or not the fee or reversion in the land can be assessed. After a right of way has been acquired by a railroad corporation by condemnation or otherwise, and its track laid upon it, we apprehend that it would be difficult to realize by a sale of the fee remaining in the grantor. But, without deciding this question, it is sufficient to say that this proceeding is for the purpose of enjoining a sale of plaintiff’s right of way,—that is to say, its easement. The judgment is, that the bond is void as a lien upon plaintiff’s right of way, and that defendant be enjoined from selling “any part or portion of plaintiff’s right of way, in said complaint, and hereinafter described.”
If the defendants do not intend to sell the plaintiff’s easement, but only the subordinate estate, the judgment is not in any way injurious to them. The restraining order is merged in the judgment and the appeal therefrom may be dismissed.
We therefore advise that the judgment be affirmed and the appeal from the order dismissed.
Harrison, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed and the appeal from the order dismissed.
Van Dyke, J., Shaw, J., Angellotti, J.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a rehearing, and filed the following opinion on the 8th of April, 1905: