Appeal of Chicago & N.W. Ry. Co.

• Citation: 246 P.2d 789,70 Wyo. 84
• Decision Date: 15 July 1952
• Docket Number: No. 2553,2553
• Parties: Appeal of CHICAGO & NORTH WESTERN RY. CO. CHICAGO & NORTH WESTERN RY. CO. v. CITY OF RIVERTON, FREMONT COUNTY.
• Court: Wyoming Supreme Court

Page 789

246 P.2d 789

70 Wyo. 84

Appeal of CHICAGO & NORTH WESTERN RY. CO.

CHICAGO & NORTH WESTERN RY. CO. v. CITY OF RIVERTON, FREMONT COUNTY.

No. 2553.

Supreme Court of Wyoming.

July 15, 1952.

W. M. Haight, Riverton, Neely, Otis & Cockle, Omaha, Neb., Nelson Trottman, Chicago, Ill., for appellant.

R. Lauren Moran and C. J. Murphy, Riverton, for respondent.

BLUME, Chief Justice.

The tracks of the Chicago and North Western Railway Company run diagonally through the city of Riverton in this state in a northeast-southwesterly direction. On April 30, 1951, the city adopted a resolution of intention for paving, curbing and guttering the streets lying westerly and northwesterly of these tracks and created District No. 2 for that purpose. An assessment roll was prepared and hearing thereon set for December 22, 1951. Notice was published for the time and place of the hearing, directing all persons to file written objections with the City Clerk on or before that date. On December 20, 1951, the railroad company herein filed its written objection to the assessment roll, stating:

First, that he property described in the assessment roll does not correctly describe the real estate owned by the railroad company within the assessment district. The assessment roll, showing the manner in which the assessment was made, was attached to the objection.

Second, that the real estate owned by the railroad company consists of a right of way and tracks and is not the kind of property contemplated by the statutes of Wyoming to be considered specially benefited. That no special benefits are conferred by the improvements on the railroad company and there is no statutory authorization for the assessment of railroad property for local improvements.

Third, that the resolution of intention is invalid for the reason that it was not adopted at a legal meeting of the city council of Riverton.

Fourth, that the contract for the improvements was not let to the lowest bidder.

The city council overruled these objections and proceeded to make assessments against the property located in the district including property of the railroad company. The manner in which the assessments against the railroad property was made will be mentioned more particularly hereafter. Thereupon the appeal was duly taken to the district court in which the same objections were urged as above mentioned. The district court affirmed the assessments made against the railroad company's property in the sum of $1489.14 and from that judgment of the district court, an appeal has been taken to this court by the railway company. We do not find any merit in objections three or four above mentioned, but shall discuss the first and second objections above mentioned in detail and in reverse order. The statutes of this state governing assessments, and referred to by counsel in their arguments, are as follows: Section 29-2002 provides as follows: 'The council of any such city or town is hereby authorized and empowered, whenever it may deem it expedient to order the whole or any part of any street or streets to be improved and to determine the character, kind and extent of such improvement, and if such improvement be paving, it shall designate the kinds of pavement to be used, and to provide for the maintenance thereof for a period of not to exceed five (5) years and to include the cost of such maintenance in the assessment for the making of the improvement, and to levy and collect an assessment upon all lots, parts of lots and parcels of land specially benefited by such improvements to defray the whole or any portion of the cost and expense thereof, and to determine what lots, parts of lots, and parcels of land are specially benefited by such improvements, and the amount in which each said lots, part of lot or parcel of land is benefited.' Section 29-2006 provides for the creation of improvement districts. Section 29-2019 is the main section of our statute involved herein and may, for the purpose of this case be divided into different parts. Part one provides as follows: 'The assessment district shall include all the property between the termini of said improvement, abutting upon, adjacent, vicinal or proximate to the street, avenue, lane, alley, boulevard, park drive, parkway, public place or square proposed to be improved to a distance back from the marginal lines thereof to the center line of blocks facing or abutting thereon, provided, that such distance back shall in any case be at least ninety (90) feet, and provided further, that in case of unplatted property, the distance back shall be the same distance as that included in the assessment of the platted lands immediately adjacent thereto.'

Part two immediately following part one is as follows: 'All property included within said limits of such local improvement district shall be considered and held to be the property and to be all the property specially benefited by such local improvement and shall be the property to be assessed to pay the cost and expense thereof or such part thereof as may be chargeable against the property specially benefited by such improvement, which cost and expense shall be assessed upon all of said property so benefited in accordance to the special benefits conferred on such property in proportion to area and distance back from the marginal line of the street, or other public way or area improved.'

Part three provides for the apportionment of the assessment in a manner which was not used in this case and which need not be set out herein.

Part four, which was an amendment of the act adopted in 1937 is as follows: 'Any city or town is authorized to apportion the expense of such improvement, in lieu of the method heretofore provided, as follows: Each one-half block or fraction thereof within the district, contiguous to each street, alley, avenue, boulevard or parkway to be improved, shall be divided, irrespective of number and location of lots, into three (3) equal subdivisions parallel to such street, alley, avenue, boulevard or parkway to be improved, which subdivisions shall be numbered one (1), two (2) and three (3) respectively, beginning next to said street, alley, avenue, boulevard or parkway. The total assessment for each half-block or fraction thereof abutting on either side of each such street, alley, avenue boulevard or parkway to be improved, as fixed by the city council, shall be apportioned as follows:

'Subdivision Number One (1) Sixty per cent (60%)

'Subdivision Number Two (2) Thirty per cent (30%)

'Subdivision Number Three (3) Ten per cent (10%)

And when so apportioned shall be assessed as the ownership may appear; provided that, any fractional lots or irregular shaped tracts to which the above formula does not apply shall be assessed according to area.' The streets involved herein run east and west. None of them cross the railway tracks. It seems that very little of the property of the railway company abuts directly on the streets improved. Most of the assessments appear to be under subdivisions 2 and 3, assessable for 30 and 10 per cent respectively as above mentioned.

1. Special Assessments Against Railroad Right Of Way.

The main question before us is as to whether or not the naked right of way of the appellant railway company is assessable for the street improvement in this case. There is a diversity of opinion on the subject. That is not surprising. The theory on which such special assessments are upheld is that the property assessed receives an equivalent in value. But that is not at all true in all cases. In fact it is probable that even in the case of private property such equivalent is in many instances at least partially a delusion. The writer, for instance paid special assessments on a lot for a period of thirty years. The more special assessments there were levied against the lot, the more the market value of the lot diminished. He was interested in a street railway company. It went bankrupt partially at least by reason of the heavy paving assessments which it was compelled to pay. To alleviate the sitation, the statutes in some states provide that the municipality as a whole must pay for a portion of street improvements. So it is not surprising that the appellant railway company objects to the assessments against it in this case. However, the judicial decisions on legislation authorizing such special assessments have generally become so crystallized that it would seem to be rather late in the day to question their authority. And to be realistic, it may be that it would be substantially impossible to make the extensive street improvements demanded by modern society except through the sacrifice or partial sacrifice of individual property owners, and that such sacrifice, as in the case of the burdensome income taxes of today, must be borne, even though grimly.

Annotations on the subject before us are contained in 37 A.L.R. 219 and subsequent pages and 82 A.L.R. 425 and subsequent pages. After reading numerous cases on the subject, we think we may say, without attempting to include every case on the subject, that there are two main lines of authority on the subject before us. The cases following the first line of authority hold that the right of way of a railroad cannot as a matter of law receive any benefit from local street improvements and cannot accordingly be subject to any special assessments therefor. City of Philadelphia v. Philadelphia, W. & B. R. Co., 1859, 33 Pa. 41; Borough of Mt. Pleasant v. Baltimore & O. R. Co., 1890, 138 Pa. 365, 20 A. 1052, 11 L.R.A. 520; New York & N. H. R. Co. v. City of New Haven, 1875, 42 Conn. 279, 19 Am.Rep. 534; Naugatuck R. Co. v. City of Waterbury, 78 Conn. 193, 61 A. 474; City of Barre v. Barre & Chelsea R. R. Co., 97 Vt. 398, 123 A. 427, 37 A.L.R. 207; Long Island R. Co. v. Hylan, 1925, 240 N.Y. 199, 148 N.E. 189; and see other cases in 37 A.L.R. 250 and 82 A.L.R. 431. It must, however, be said that in these cases...