City of Barre v. Barre & Chelsea Railroad Co.

• Decision Date: 06 February 1924
• Citation: 123 A. 427,97 Vt. 398
• Parties: CITY OF BARRE v. BARRE & CHELSEA RAILROAD COMPANY
• Court: Vermont Supreme Court

123 A. 427

97 Vt. 398

CITY OF BARRE v. BARRE & CHELSEA RAILROAD COMPANY

Supreme Court of Vermont

February 6, 1924

October Term, 1923.

ACTION OF CONTRACT to recover the amount of an assessment on account of certain street improvements. Plea, the general issue. Trial by court on an agreed statement of facts at the March Term, 1923, Washington County, Wilson, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed, and judgment for defendant, with costs.

H C. Shurtleff for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

BUTLER

The plaintiff seeks to recover the amount of an assessment against the defendant on account of certain street improvements. The case was heard on an agreed statement of facts, and to the judgment for the plaintiff the defendant excepts. Acting under authority of its charter, the city drained, paved, graded, curbed, and guttered the street in question, and assessed the abutting land owners proportionately, according to the frontage of their land on the street for a portion of the expense. The land on account of which the defendant was assessed is its right of way twenty feet wide, used solely for railroad purposes and, aside from a flagman's shanty, contains nothing but its main line track. The right of way crosses the street diagonally at grade, and the assessment was made on the portions thereof, approaching and leaving either side of the street--as for a frontage of 63 feet on the easterly side and 77.2 feet on the westerly side.

On the hearing below the plaintiff claimed the right to assess the right of way for betterments, which the defendant denied. The parties stipulated that this question was to be determined on its merits, and that all other questions were waived. It follows that review is confined to the question thus presented. As the case comes up on an agreed statement of facts, its determination must be based on the facts thus appearing. No inferences could be drawn therefrom by the court below and so none can be indulged here in support of the judgment. Chittenden County Trust Co. v. Hurd, 93 Vt. 71, 106 A. 564; Mathie v. Hancock, 78 Vt. 414, 63 A. 143. And the burden is on the taxing power to establish the validity of the tax.

In support of the assessment the plaintiff relies upon authority conferred by its charter. It is therein provided that when any street in the city is drained, graded, paved, or macadamized, curbed and guttered, or any of such improvements are made pursuant to charter provisions, the street commissioners shall assess according to frontage not to exceed one-half of the total cost and expense thereof upon all the lands and buildings fronting upon or adjacent to such street, "according to the special benefits to such lands or buildings." Acts of 1912, No. 290, § 10, amending section 13 of No. 256, Acts 1906.

The assessments in question are made on the theory that the railroad right of way on both sides of the street is land fronting upon or adjacent to the highway.

It is agreed that the sums assessed bear the same proportion to the total cost, less certain amount not here material, that the total amount assessed to all abutting land owners bears to the total land frontage, and the case shows that the assessment is laid on the same basis as the assessments are made against all abutting land owners, rather than the basis of actual benefit conferred upon the defendant's right of way for railroad purposes. There is neither authority nor reason for such an assessment.

But considering the stipulated claims as relied upon, we may assume, without deciding, that the strip of land used as such right of way is land "fronting upon or adjacent to" the improved street, and to that extent within the provisions of plaintiff's charter; such assessments are a form of taxation. Durkee v. City of Barre, 81 Vt. 530, 71 A. 819, and, apart from the provisions of the charter, the only legal basis therefor is the special benefit conferred by the improvements--such benefits as the land owner receives therefrom in excess of the benefits enjoyed by the general public. Corliss v. Village of Richford, 85 Vt. 85, 81 A. 234; Barnes v. Dyer, 56 Vt. 469; Allen v. Drew, 44 Vt. 174.

Such is the test of liability for special assessments generally. Property belonging to a railroad company is controlled substantially by the rules governing other cases for local improvements. Railroad property other than the roadbed or right of way has generally been held liable for such assessment wherever it has been benefited by the local improvement, but the courts are not in harmony as to whether the roadbed or right of way may properly be assessed. 25 R. C. L. 117.

Ordinarily the question whether the particular land sought to be assessed is specially benefited would be a question of fact; but when such land is used solely as a railroad right of way the question is one of law in the absence of special circumstances. Such land is used permanently by the railroad company in its operation. As a practical matter it may not be severed from other property and sold. In short, it is a species of highway devoted to public travel. In re City of New York, 233 N.Y. 387, 135 N.E. 825, and must be regarded as permanently devoted to the public use. Erie R. R. Co. v. City of Paterson, 72 N.J.L. 83, 59 A. 1031.

In case of land devoted to such use to justify an assessment for local improvements, the benefit must be...