Indianapolis & V.R. Co. v. Capitol Pav. & Const. Co.

• Decision Date: 24 October 1899
• Citation: 24 Ind.App. 114,54 N.E. 1076
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS & V. R. CO. et al. v. CAPITOL PAV. & CONST. CO.

24 Ind.App. 114

54 N.E. 1076

INDIANAPOLIS & V. R. CO. et al.

v.CAPITOL PAV. & CONST. CO.¹

Appellate Court of Indiana.

Oct. 24, 1899.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Proceeding by the Capitol Paving & Construction Company against the Indianapolis & Vincennes Railroad Company and others to collect a street-improvement assessment. Judgment for plaintiff, and the railroad company appeals. Reversed.Samuel O. Pickens and R. F. Davidson, for appellant. Daniel Wait Howe, for appellee.

ROBINSON, J.

Appellant's right of way in Kentucky avenue, Indianapolis, between River and Merrill streets, occupies the north half of the avenue. Appellee seeks to collect a street-improvement assessment levied on this right of way by the board of public works for improving the south half of the avenue between River and Merrill streets. The question presented is the power of the board of public works to make the assessment against appellant's right of way.

It is first argued that there is no authority in the city charter for assessing the cost of improving one side of a street against any property. The city charter provides that if the board of public works shall order the improvement, advertise for bids, and let the contract, the cost of the improvement shall be estimated according to the whole length of the street, or so much thereof improved as is uniform in the extent and kind of the proposed improvement per running foot, and the total cost, exclusive of street and alley intersections, “shall be apportioned upon the lands or lots abutting thereon”; that the “lots or lands bordering on” the street shall be assessed, and liable to the payment of such assessment, primarily, and, if not sufficient, then lots or land shall be liable back a named distance from the front line. Burns' Rev. St. 1894, §§ 3845, 3846. A municipal corporation derives its right to impose local taxation from the state, and express legislative permission is necessary when the right is exercised. A person against whom a local assessment is levied may successfully insist that the statute conferring this right be strictly construed in his favor. The city can act only by virtue of the naked statutory power conferred upon it, and can exercise this power with reference to no property other than the statute authorizes. Niklaus v. Conkling, 118 Ind. 289, 20 N. E. 797;Paving Co. v. Edgerton, 125 Ind. 461, 25 N. E. 436; Elliott, R. R. § 782; Town of Salem v. Henderson, 13 Ind. App. 563, 41 N. E. 1062. We see nothing to prevent the city from improving one-half a street, or a roadway in the center of a street. The part improved must be uniform in the extent and kind of the proposed improvement per running foot. The lands and lots which are to bear the cost of the improvement must abut or border upon that part of the street having the improvement, and not necessarily on the improvement itself. The question to be determined is whether the improvement is of such a character that it should be regarded as an improvement of the street at that particular place. We think the charter means that a part in width of the street may be improved, and whether this improved part lies on one side of the center line, or in the center of the street, the lands and lots on the two sides of the street for the length of the improvement shall bear the cost. City of Muscatine v. Chicago, R. I. & P. Ry. Co., 88 Iowa, 291, 55 N. W. 100;Morrison v. Hershire, 32 Iowa, 276.

It is further argued that the assessment is void because appellant's right of way is not “lands or lots,” within the meaning of the charter. A railroad company has an easement in grounds occupied by its tracks. An easement is an incorporeal right created by grant, and always carries with it an interest in the land in or over which it is to be enjoyed. 2 Minor, Inst. 20 et seq. In some jurisdictions it is held that a street assessment cannot be enforced against a railroad's abutting right of way, because it is not land, and because public policy forbids the severance of the several parts essential to the use and operation of the road. See Chicago, M. & St. P. Ry. Co. v. City of Milwaukee, 89 Wis. 506, 62 N. W. 417. But it has been held in this state that the right of way of a railway company abutting upon or bordering on a street may be assessed for the improvement of the street. Railroad Co. v. Hanna, 68 Ind. 562, and cases there cited; Railway Co. v. Hays, 17 Ind. App. 261, 44 N. E. 375, 45 N. E. 675, and 46 N. E. 597. See, also, Paterson & H. R. R. Co. v. City of Passaic, 54 N. J. Law, 340, 23 Atl. 945. And it has been held that benefits might be assessed against a railroad's right of way in a drainage proceeding, and the amount collected by a personal judgment, although the statute made the assessment a lien upon the property assessed, and provided that no other property than the lands so assessed should be sold to satisfy such judgment. Louisville, N. A. & C. Ry. Co. v. State, 122 Ind. 443, 24 N. E. 350;Louisville, N. A. & C. Ry. Co. v. State, 8 Ind. App. 377, 35 N. E. 916. See, also, Railroad Co. v. Bowker, 9 Ind. App. 428, 36 N. E. 864;Railway Co. v. Boney, 117 Ind. 501, 20 N. E. 432; Railway Co. v. Hays, supra. However sound the reasoning in the cases cited by appellant's counsel, it is no longer an open question in this state that a railroad company must bear its portion of a street-improvement assessment where its right of way abuts or borders on the street.

But it is earnestly argued that the board of public works had no authority to assess appellant's right of way which does not abut or border upon the street improved, but which lies wholly within the street. It is evident two easements exist,-the right of the public in the street, and the right of the railroad company to construct its track upon the street. It cannot be said, however, that the company occupies the street merely by license from the city. When a company lays its tracks in the street, it imposes a new burden upon the land beyond the easement the city had; and this new interest can be created only by contract with the owners of the fee, or under the right of eminent domain. So it must be concluded that the easement held by the company is an interest in the land over which its tracks run, and that it is property which must be acquired by purchase, and payment of the consideration, like any other property. But conceding that appellant's right of way is “land,” within the meaning of the charter, the question remains whether the right of...