Kansas City Southern R. Co. v. City of DeRidder

• Decision Date: 29 January 1968
• Docket Number: No. 2193,2193
• Citation: 206 So.2d 562
• Parties: The KANSAS CITY SOUTHERN RAILROAD COMPANY, Plaintiff-Appellee, v. CITY OF DeRIDDER, Louisiana, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 562

206 So.2d 562

The KANSAS CITY SOUTHERN RAILROAD COMPANY, Plaintiff-Appellee, v. CITY OF DeRIDDER, Louisiana, Defendant-Appellant.

No. 2193.

Court of Appeal of Louisiana, Third Circuit.

Jan. 29, 1968.

Rehearings Denied Feb. 19, 1968.

Writs Refused April 11, 1968.

Hall & Coltharp, by L. H. Coltharp, Jr., DeRidder, for defendant-appellant.

Porter, Scofield & Cox, by James J. Cox, Lake Charles, for plaintiff-appellee.

Before HOOD, CULPEPPER and LEAR, JJ.

HOOD, Judge.

This is an action for a declaratory judgment annulling a paving assessment insofar as it purports to affect a tract of land occupied by plaintiff as a right of way for a railroad.

The suit was instituted by The Kansas City Southern Railroad Company against the City of DeRidder. The property affected by the special assessment is a strip of land on which a part of the main line of defendant's railroad is located, running along the west side of Jefferson Street in DeRidder. The ordinance levying the special assessment asserts that this property has a frontage of 390.7 feet on that street. Judgment was rendered by the trial court decreeing the assessment to be valid as to 231.9 feet of the railroad property, but decreeing it to be null and void as to the remaining 158.8 feet of that property. Defendant has appealed from that part of the judgment which decrees a portion of the assessment to be invalid. Plaintiff has answered the appeal, demanding that the entire assessment be annulled.

Pursuant to the provisions of LSA-R.S. 33:3306, an ordinance was adopted by the City of DeRidder on August 8, 1966, levying special assessments against a number of items of real property to pay the costs of paving several streets in that city. One of the streets included in the paving project was Jefferson Street, and among the special assessments levied for the paving of that street was one affecting a strip of land on the west side of that street which was listed as being owned by plaintiff railroad company. This special assessment was described in the ordinance as follows:

THE KANSAS CITY SOUTHERN RAILWAY COMPANY

Acquired in COB 57 page 355

A part of the Southeast Quarter of Northeast Quarter (SE 1/4 of NE 1/4) of Section Thirty-three (33), Township Two (2) South, Range Nine (9) West, fronting 403.5 feet on Jefferson Street less Highway Turnout of 3.0 feet on North end and 9.8 feet on south end.

Fronting 390.7 feet. $1953.50

Plaintiff does not attack the validity or regularity of the proceedings of the City of DeRidder in leaving these assessments, but it challenges the validity of this particular assessment on the grounds: (1) That the railroad right of way sought to be assessed is not 'real property' within the meaning of LSA-R.S. 33:3301 et seq.; (2) that the property affected by the special assessment will not be benefitted by the improvements; and (3) that the railroad property does not abut the street which is to be improved.

The trial judge concluded that the property sought to be assessed was 'real property' within the meaning of LSA-R.S. 33:3301 et seq., and that it would be benefitted by the improvement. He found, however, that only 231.9 feet of the railroad property abutted the street, and he held that the assessment was valid insofar as it related to that portion of the property. Finding that the remaining 158.8 feet of the property did not abut the street, he held that the assessment was void as to that part of the property.

Jefferson Street runs north and south, and defendant proposes to pave that portion of the street which extends a distance of 390.7 feet, from Mahlon Street on the north to East First Street on the south. The main line of the Kansas City Southern Railroad runs parallel to and along the west side of the right of way of Jefferson Street.

Plaintiff contends primarily that it is not the fee owner of the property, that it owns only a servitude or easement for railroad purposes on the land, that the servitude which it owns is not 'real property' within the meaning of LSA-R.S. 33:3301 et seq., and that the defendant city thus cannot levy a special assessment for street improvement purposes against that right of way. Defendant contends that plaintiff is the fee owner of the property.

At the trial evidence was introduced to show the nature of plaintiff's title to this property. The evidence so produced included an abstract of title to the land. Plaintiff argues that the evidence establishes that it owns only a servitude or casement for railroad purposes, while defendant argues that the evidence shows that plaintiff has fee title to the property.

We have decided that for the purposes of this suit it is immaterial whether plaintiff owns a servitude on or fee title to the railroad property which abuts Jefferson Street on the west, and that it thus is unnecessary for us to determine the exact nature of its title. In our opinion the City of DeRidder may levy a special assessment against the railroad property which abuts the street to be improved, even if we assume that plaintiff is correct in its contention that it owns only a servitude for railroad purposes on that property.

LSA-R.S. 33:3301 and 33:3306 authorize municipalities to pave or resurface streets and to levy local or special assessments on the 'real property' abutting the improvements, and on 'each lot or parcel of real estate abutting the street.' We find no provision of law which specifically authorizes the levying of a special assessment against a railroad right of way for street improvement purposes, but neither do we find any law which exempts railroads from any such assessment or which prohibits a municipality from levying a special assessment for street paving purposes against a railroad right of way abutting the street which is to be improved.

Plaintiff points out that La.Const. Art. XIII, Section 3, provides that 'all railroads are hereby declared public highways,' and it argues that since the railroad is a public highway it is exempt from taxation. We find no merit to this argument. The assessment of railway businesses for general taxation purposes is authorized by LSA-R.S. 47:1979. Also, a special assessment against railroad property for street paving purposes was specifically upheld by our Supreme Court in City of Alexandria v. Chicago, Rock Island & Pac. R . Co., 240 La. 1025, 126 So.2d 351, 97 A.L.R.2d 1073 (1961).

The issue of whether a municipality may levy a special assessment for street improvement purposes against a railroad right of way which abuts the street, where the railroad owns only a servitude or easement on the land, appears to be res nova in Louisiana. The jurisprudence in other states on similar issues is conflicting, but the weight of authority seems to be that a municipality may levy a special or local assessment against railroad property to pay the costs of improving a street which abuts the railroad property, even though the railroad owns only a servitude or an easement on the property for railroad purposes. The reason for this, we assume, is that a servitude for railroad purposes is usually of such long duration and is of such a nature that in practical effect it is equivalent to the fee ownership of the property. The fee owner in such instances ordinarily has no use of the property, and he would not be benefitted by the improvement of an abutting street, whereas the railroad may be benefitted by the improvement.

The majority rule is set forth in 48 Am.Jur., Special or Local Assessments, Sec. 110, as follows:

'Although there is contrary authority, In a majority of the jurisdictions in which the courts have considered the question, the conclusion has been that the fact that a railroad right-of-way is held merely by easement is not a ground for denying the right to levy a special assessment upon it. At least, this rule is to be applied where the special benefit of the improvement inures to the railroad and not the owner of the reversionary interest. In support of this view, the improbability of abandonment and the probability of perpetual use of a particular railroad right-of-way have been observed. Furthermore, It has been said that abutting property cannot be relieved from the burden of a street assessment simply because its owner has seen fit to devote it to a use which may not be specifically benefited by the local improvement. The benefit is presumed to inure not to such present use, but to the property itself, affecting its value. In accordance with the general rule, it has been held that the mere fact that a railroad does not own its right-of-way in fee does not exempt it from assessment for an improvement constructed under a statute authorizing the cost of such improvements to be assessed on the property benefited, including that of railroads, if the railroad is in fact benefited by the improvement.' (Emphasis added.)

In 63 C.J.S. Municipal Corporations § 1334, the rule is stated in the following language:

'Although there is some authority to the contrary, as a general rule, unless expressly exempted by legislation or by organic law, property of railroads may by appropriate legislation be made liable to special assessments for local improvements. Such an assessment has been held valid notwithstanding the failure of the statute expressly to authorize the assessment of railroad property. * * *

'Whether the company owns the land in fee or holds merely an easement therein has been held not material in determining its liability to assessment, although there is also authority to the contrary. It has also been held that the fact that a railroad right of way would in the event that the use as a railroad was abandoned revert to the grantor does not prevent the assessment thereof for a local improvement.'

The Supreme Court of Nebraska, in Chicago & N.W. Ry. Co. v. City of Omaha, 154 Neb. 442, 48 N.E.2d 409 (1951), quoted with approval from 4 Dillon, Municipal Corporations (5th Ed.) Section 1451, p. 2586, as follows:

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