Ada County v. Oregon Short Line R. Co.

Decision Date20 June 1938
Docket NumberNo. 8671.,8671.
Citation97 F.2d 666
PartiesADA COUNTY et al. v. OREGON SHORT LINE R. CO.
CourtU.S. Court of Appeals — Ninth Circuit

Willis C. Moffatt and Maurice H. Greene, both of Boise, Idaho, for appellants.

George H. Smith, of Salt Lake City, Utah, and H. B. Thompson and L. H. Anderson, both of Pocatello, Idaho, for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

GARRECHT, Circuit Judge.

This is an appeal from a decree filed April 14, 1937, in the court below, perpetually enjoining the appellants from collecting or attempting to enforce the payment of any portion of certain taxes assessed and levied against two parcels of real estate situate in Ada County, Idaho, title to which was in the appellee corporation.

The appellee brought suit against the appellants praying that certain local tax assessments be declared void and that appellants be enjoined from taking any steps to collect said taxes. The property affected concerns two parcels, designated by the parties as the "Original right of way" or "Parcel No. 1," and the "Citizens' right of way" or "Parcel No. 2." The appellee acquired the former parcel about the year 1887 and the latter in 1923.

The appellee alleged the official positions of appellants Leonardson and Ketchen; the acquisition and description of the two parcels of land referred to above; that the premises were acquired "with the bona fide present intention, at the time of acquisition, of using the same to furnish terminal facilities and station grounds at said City of Boise," etc, and using the same as operating property; "and that all of said property was reasonably necessary to the operation and maintenance of said station grounds and terminal and line of railroad, and in the conduct of its business at Boise, Idaho, * * *." It was further alleged that on March 13, 1913, the legislature of the State of Idaho enacted a law providing for assessment of property and equalization of assessments, describing powers and duties of taxing officers; that said Act defined the term "operating property." (Chap. 58, Session Laws of Idaho, 1913 (H.B. No. 156.)

The complaint went on to allege that the real property of the appellee had been assessed by the State Board of Equalization continuously from March 13, 1913, down to May, 1935; that following the acquisition of Parcel No. 2 or Citizens' right of way in 1923, the appellant Leonardson undertook to place an assessment thereon, but the Attorney General of the state rendered an opinion under date of May 21, 1925, wherein he held said property assessable only by the State Board of Equalization and not locally; that thereupon the assessment of the county assessor was cancelled and thereafter through the intervening years the property was assessed by the State Board of Equalization; that appellant Leonardson certified and delivered to appellee a purported assessment of said property for the year 1935, the assessment describing the portions of Parcel No. 1 or Original right of way, levied upon as follows: "Leased portion of O.S.L.R.R. R.W. in Boise, between 5th & 6th Streets, 6th & 7th Streets, 8th & 9th Streets and 13th & 14th Streets as shown by blue prints in County Assessor's office." and Parcel No. 2 or Citizens' right of way, as follows: "Citizens' Right of Way between east city limits and 16th Street, in Boise, as shown by blue prints in County Assessor's office."; that the assessed valuation of Parcel No. 1 was $8910 and the tax $498.97, and the assessed valuation of Parcel No. 2, $157,079 and the tax $8,796.42; that Leonardson was proceeding to assess said property; that such assessment would create an apparent lien or cloud of title upon the land; that the descriptions were indefinite, obscure and not sufficiently particular; that Leonardson purported to assess the property for 1936, as he had for 1935; that it could not be determined what portion of the assessment was attempted to be levied against any particular portion or parcel of all of the said property attempted to be assessed.

The pertinent statutes are set forth in the margin.1

The appellee introduced oral and documentary evidence at the trial, and the appellants elected to submit the cause on that evidence.

The Original right of way is a strip or parcel of land parallel to the tracks of the appellee to the north thereof, and the Citizens' right of way is a similar strip of land parallel to the tracks to the south thereof, both parcels being adjacent to said line of tracks and extending generally east and west, being intersected by streets running generally at right angles thereto.

The railroad company acquired the Original right of way at the time of the original establishment of a branch line into Boise, probably as early as 1887. Prior to 1923 the Citizens' right of way was held by trustees in trust to be conveyed for railroad purposes when in the judgment of the trustees such action would result in sufficient benefit to the City of Boise. On September 19, 1923, said trustees made such conveyance to the appellee herein for the stated consideration of one dollar and the bringing of its main line into Boise. In that year the railroad brought its main line through Boise. It was found as a fact by the court that appellee Leonardson undertook in the year 1925 to assess locally the Citizens' right of way and thereafter in the same year said assessment was cancelled and continuously thereafter, to and including the years 1935 and 1936, all of the lands here involved were certified as operating property of appellee and assessed as such by the State Board of Equalization and were not assessed or attempted to be assessed locally or otherwise by the County Assessor of Ada County until 1935.

Four parcels of land included in the Original right of way were under lease to tenants of the railroad and the assessment for the year 1935 was levied against these parcels of said right of way.

Substantially all of the ground in the Citizens' right of way was occupied by lessees of the trustees before 1923. There were 18 leases upon this ground at the time of the trial, 17 of which were made prior to 1923. The lessees conduct a variety of businesses upon the leased portions of both rights of way and in connection therewith ship and receive large quantities of freight over the lines of appellee.

The leases are all substantially the same, with the exception of the description and rental and cover only the land, buildings being erected by the tenants. There was a provision in each lease that the lessee should pay local taxes on buildings and improvements.

The appellants assert in their brief: "As shown by the map (Ex. 1) there are certain portions of this Citizens' right of way which are not occupied by tenants nor by the appellee. These are designated by tax numbers 2, 4, 5, and 6. These parcels have never been used by the railroad and were, at the time of the acquisition by the railroad, vacant and are not now used by the railroad or by anyone else."

These parcels or plats were not separately assessed in 1935, but were given tax numbers in 1936. Tax numbers were not given any of the property of the two rights of way in 1935; a list was made up of the property for 1936, including the four listed above, with descriptions and numbers, but the list was not certified. See Sections 61-301 et seq., I.C.A.

The appellants contend that the lower court made no distinction between the premises designated as Tax Nos. 2, 4, 5, and 6, which were vacant and not used, and leased premises; that if the appellee had the intention of using the same for terminal facilities it had not evidenced such intention and there is no evidence that it so intended to use this property at any time in the future as such.

We have diligently searched the record and find not one word of testimony to the effect that the premises designated as Tax Nos. 2, 4, 5, and 6 are vacant and unoccupied and counsel have not pointed out any place in the record where such testimony may be found. True, reference is made to Exhibit No. 1, but we have encountered great difficulty in so interpreting said exhibit.

Whatever the fact may be it is not now material here because the evidence discloses and the court found that the premises described was "operating property." Many years prior to the conveyance to appellee this property, known as "Citizens' right of way," had been purchased and conveyed to trustees for the purpose of encouraging a development of railroad facilities at that place and to be held for railroad purposes. In fulfillment of the trust the trustees conveyed this tract to the appellee for railroad purposes and as an inducement to have it bring its main line into Boise, Idaho, which it did; that theretofore the right of way of appellee at this point was but 50 feet wide, the acquisition of this property enabled the road to widen its right of way to the ordinary width of 100 feet. The court also found that this property was acquired by appellant with a bona fide present intention of using it to furnish terminal facilities in the immediate future.

The primary question to be decided is whether the property of the appellee which appellant Leonardson undertook to assess falls within the definition of "operating property" as set forth in Sections 61-113 and 61-601 of the Idaho Code Annotated. If the property in question is "operating property" it is assessable exclusively by the State Board of Equalization; if not, by the county assessor. Sections 61-601, 61-603, I.C.A.

The appellants discuss "exemptions" from taxation in their brief, arguing that the appellee was required to show clearly that its property fell within the "exemption" of "operating property" in order to avoid taxation by the local authorities and that this it failed to do. The question of "exemption" is not involved here. Under the law, no property of a public utility is exempt or escapes taxation, but the "operating property" for assessment and...

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4 cases
  • Ada County v. Bottolfsen, 6755
    • United States
    • Idaho Supreme Court
    • April 27, 1940
    ...was abandoned upon an opinion by the attorney general of the state upholding the right of the state board to assess (Ada County v. Oregon Short Line R. Co., supra) the present action commenced in 1935. The court may take judicial notice of the fact that the Reclamation Service is not engage......
  • Garry v. Atchison, T. & S.F. Ry. Co.
    • United States
    • New Mexico Supreme Court
    • February 8, 1963
    ...v. State of Nebraska, 164 U.S. 403, 17 S.Ct. 130, 41 L.Ed. 489; Oregon Short Line R. Co. v. Ade County, D.C., 18 F.Supp. 842; aff'd 9 Cir., 97 F.2d 666, holding to like effect. In 94 A.L.R. 522, 535, in a note on the subject 'Right of railroad company to use or grant use of land in a right ......
  • Ada County ex rel. State v. Bottolfsen
    • United States
    • Idaho Supreme Court
    • December 21, 1939
    ... ... determining whether property is assessable by it as operating ... property of a line of railroad, the State Board of ... Equalization exercises a judicial function. (Orr v. State ... unoperating property of a line of railroad. (I. C. A., sec ... 61-601; Oregon Short Line R. Co. v. Gooding, 6 Idaho ... 773, 59 P. 821; Chicago M. & St. Paul Ry. Co. v ... ...
  • Security Abstract & Title Co. v. Leonardson
    • United States
    • Idaho Supreme Court
    • December 23, 1953
    ...of an erroneous or excessive assessment is not involved. Oregon Short Line v. Ada County, D.C., 18 F.Supp. 842; Ada County v. Oregon Short Line R. Co., 9 Cir., 97 F.2d 666; Nelssen v. Elec. Dist. No. 4, 60 Ariz. 175, 133 P.2d 1013; McDonald v. Clarke County, 196 Iowa 646, 195 N.W. 189; Hutc......

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