Atlantic & P.R. Co. v. Lesueur

• Decision Date: 19 September 1888
• Docket Number: Civil 224
• Parties: ATLANTIC & PACIFIC RAILROAD COMPANY, Plaintiff and Appellant, v. J. T. LESUEUR, Defendant and Appellee
• Court: Arizona Supreme Court

19 P. 157

2 Ariz. 428

ATLANTIC & PACIFIC RAILROAD COMPANY, Plaintiff and Appellant, v. J. T. LESUEUR, Defendant and Appellee

Civil No. 224

Supreme Court of Arizona

September 19, 1888

APPEAL from a Judgment of the District Court of the Third Judicial District in and for the County of Yavapai. James H. Wright Judge.

Affirmed.

W. C Hazledine, and Howard & Sanford, for Appellant.

Baldwin & Baldwin, for Respondent.

Barnes J. Wright, C. J., and Porter, J., concur.

OPINION

The facts are stated in the opinion.

BARNES, J.

This was a suit to enjoin the collection of taxes levied upon the property of the plaintiff by the proper revenue officers of Apache county. The ground upon which the injunction is sought is that the assessment was illegal. The levy was made upon the improvements on a certain strip of land in said county, 200 feet wide and 112 miles long, upon the center line of which the railroad of plaintiff is situate; the improvements consisting of culverts, wooden bridges, grading, trestles, rock, earth cuts, and fills; also 265,000 wooden cross-ties, steel and iron rails, fish-plates, bolts, and spikes thereon; also steam-pumps and water-tanks, section-houses, depot buildings, round-house, hotel, coal-chutes, side tracks, blacksmith shops thereon; also 12 cottages, used by employes, 500 feet from the track; the franchise of plaintiff to do business and collect freights and fares, except business with the United States; also a telegraph plant along the said line, also safes and office furniture; also railway supplies, also 15 locomotives, 4 coaches, 2 mail and express cars, 100 box cars, 75 flat cars, 7 caboose cars, 16 living cars, 15 hand cars, coal on hand, and cross-ties.

Against the legality of this assessment it is urged, first, that the superstructure and improvements, buildings, etc., on what is called the "right of way" of the plaintiff is exempted from taxation by its charter. By its charter, (14 U.S. St. at Large, 292,) "the right of way through the public lands is granted to plaintiff for the construction of a railroad and telegraph, to the extent of 100 feet on each side of said road, including necessary grounds for station buildings, shops, switches, turn-tables, and water stations; and the right of way shall be exempt from taxation within the territories of the United States." It is said that this is a grant of an interest in the real estate, taken for a right of way, and that whatever is attached to it becomes a part of the realty, and, as the right of way is exempt, that the exemption carries with it whatever has become a part of the realty. No one can question that a right of way is an interest in the realty; nor that culverts, bridges, railway switches, depot buildings, etc., thereon, become part of the realty. He who has title to the right of way has title to the superstructure. They would pass by grant, and would be subject to the laws regulating the conveyance of real estate, including the statute of frauds. All this will be conceded. But does it follow that the exemption of the right of way exempts all appurtenances afterwards attached thereto? This is the question. The supreme court of Montana seems to hold that it does, though a careful consideration of the decision will show that this conclusion is dictum. Northern etc. R. R. Co. v. Carland, 5 Mont. 146, 3 P. 134. The charter of the Northern Pacific Railroad Company is in the same words as the Atlantic & Pacific Railroad Company's charter. In that case the tax was levied upon an assessment of "twenty miles of railroad and rolling stock." The assessment of 20 miles of railroad did include the right of way, as the argument of that case and the cases cited demonstrate conclusively. And the court rightly held that the assessment was illegal, in that the exempted right of way was included in it. This was all that was before the court, and is all that was really decided. The cases cited do not lead beyond this conclusion. Appeal of North Beach etc. R. R. Co., 32 Cal. 499. This case holds that a right of way is an easement in the land, and that the estate is real property, and may be taxed as such. The opinion is quoted at large in the Montana case. We have never seen the principle here stated doubted. Washb. Easem. 5, says: "An easement always implies an interest in the land. It may be a freehold or a chattel one, according to its duration. It is real property, and it is created by grant." In this it differs from a license. Rowbotham v. Wilson, 8 El. & Bl. 123; Ex Parte Coburn, 1 Cow. 568; Heaton v. Ferris, 1 Johns. 146; Wolfe v. Frost, 4 Sandf. Ch. 72; Foster v. Browning, 4 R.I. 47, 67 Am. Dec. 505; Buckeridge v. Ingram, 2 Ves. Jr. 654; Binney's Case, 2 Bland 99; Bowman v. Wathen, 2 McLean 376, F. Cas. No. 1740; Providence Gas Co. v. Thurber, 2 R.I. 15, 55 Am. Dec. 621; Albany etc. R. R. Co. v. Osborn, 12 Barb. 223; Albany etc. R. R. Co. v. Canaan, 16 Barb. 244; Railroad Co. v. Morgan Co., 14 Ill. 163, 56 Am. Dec. 497; Williams v. New York Cent. R. R. Co., 16 N.Y. 97; Mahon v. New York Cent. R. R. Co., 24 N.Y. 658; Wager v. Troy Union R. Co., 25 N.Y. 526; Presbyterian Soc. in Waterloo v. Auburn etc. R. R. Co., 3 Hill 567; People v. Cassity, 46 N.Y. 46; New Haven v. Fair Haven etc. R. R. Co., 38 Conn. 422, 9 Am. Rep. 399; Chicago v. Baer, 41 Ill. 306; Farmers' Loan & Trust Co. v. Hendrickson, 25 Barb. 484; 1 Washb. Real Prop. 3. These, and many other authorities that may be cited, clearly point out the law as stated. An assessment of 20 miles of railroad was an assessment of the real estate, and included the right of way and the superstructure thereon. How we are to conclude from these premises, however, that the exemption of a right of way ex vi termini exempts from taxation the superstructure, we cannot see. It is non sequitur. Exemption from taxation is an exception from the general rule that all property shall be taxed equally. He who asserts that his property is exempt must show it by the clear letter of the law. No intendments are in his favor. No construction will aid him. Every doubt will be resolved against him. He does not stand favored, as does a grantee or a mortgagee. The meaning of words is not broadened to include him. Though you will construe liberally when you tax, you must construe strictly to exempt. You must point it out in the words, "Ita lex scripta est;" free from doubt or ambiguity. Cooley, Tax'n, 204; Philadelphia etc. R. R. Co. v. Maryland, 10 HOW 376; Providence Bank v. Billings, 4 Peters 514; Railroad Co. v. Dennis, 116 U.S. 665, 6 S.Ct. 625; Cottle v. Spitzer, 65 Cal. 456, 52 Am. Rep. 305, 4 P. 435; Waller v. Hughes, ante, p. 114, 11 P. 122. SHIELDS, J., for this court, says: "No property within the territory is exempt from the operation of these revenue laws, unless put beyond them, designedly and unequivocally, by the legislative or other sovereign power. A mere inference that certain property is exempt from taxation will never do; nor will it be assumed, unless the language used is too clear to admit of doubt." Railroad Co. v. Guffey, 120 U.S. 569, 7 S.Ct. 693; "It is the settled doctrine of this court that an immunity from taxation by the state will not be recognized, unless granted in terms too plain to be mistaken." By this rule, then, we come to a construction of section 2 of the plaintiff's charter. The lands of plaintiff are not assessed; nor is the right of way as such. Improvements, culverts, bridges, ties, iron, buildings, etc., located on the right of way, are. But were these exempted by the exemption of the right of way? Had congress so intended, it would have been easy to have said so; the addition of a word or two would have made it certain. Congress granted a right of way over the public lands, and in the same section it exempts what is granted from taxation. It did not want improvements, culverts, bridges, buildings, iron, ties, etc. This was property to be placed there afterwards by the grantees. Shall we infer that it exempted what it did not grant, when it does not say so or use words looking in that direction? We think not. We should stand by the letter of the law, in favor of equality of taxation. We will not infer that congress has done so unjust a thing as to expose an immense property thereafter to be created where it would demand the constant protection of all the machinery of organized society at a great expense, and then relieve it of its just burden of taxation in order to defray these expenses. It was projected into almost a wilderness, where inhabitants were few; where the title to the lands was in the United States, free from taxation; where the burdens of sustaining social order would at best be heavy. Such a property as this would greatly increase these burdens. It cannot be thought for a moment that congress intended by the use of the innocent words, "and the right of way shall be exempt from taxation," to do such a monstrous wrong as to exempt the millions the grantees should put upon the right of way from taxation for all time.

It is further urged with great force, skill, and ability that the grant of right of way to a railway is sui generis and is in fact a grant of the fee; and, if so, to exempt the fee so granted exempts the superstructure. It is said that the term "right of way" is used to describe the land granted,--that is, that these are words of...