Northern P. Ry. Co. v. City of Seattle

• Decision Date: 01 August 1907
• Citation: 46 Wash. 674,91 P. 244
• Parties: NORTHERN PAC. RY. CO. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

91 P. 244

46 Wash. 674

NORTHERN PAC. RY. CO. v. CITY OF SEATTLE.

Supreme Court of Washington

August 1, 1907

Appeal from Superior Court, King County; R. B. Alberston, Judge.

Objections by the Northern Pacific Railway Company to an assessment of its property for street improvements by the city of Seattle were overruled by the city council and on appeal by the superior court, and from the order of the court affirming the assessment the company appeals. Affirmed.

Carroll B. Graves, for appellant.

Scott Calhoun and O. B. Thorgrimson, for respondent.

CROW J.

The city of Seattle, by Ordinance 12,185, created local district 1,059 for the improvement of Wallingford avenue and other streets, by constructing sidewalks, and directed that a special assessment be levied against the property therein to pay the cost thereof. The district consisted of all real estate to the depth of 120 feet abutting on each side of the streets improved. An assessment roll was prepared, filed, and notice given, in due form. Written objections made by the Northern Pacific Railway Company were overruled by the city council, and upon appeal were again overruled by the superior court of King county. From the order of the superior court confirming the assessment, the Northern Pacific Railway Company has appealed.

The assessment was made upon all abutting property according to frontage. The trial court found that the appellant has an abutting right of way, varying from 60 to 100 feet in width which has been assessed; that it was acquired as a right of way, and is not used for any other purpose; that, with the exception of a single track located thereon, it is vacant and unimproved; that the assessment levied is in proportion to the assessments on other lands in the district; that the appellant's land is within the limits of the city of Seattle, close to the north shore of Lake Union, in a vicinity now being used for the operation of mills and manufacturing plants; that said land is suitable for the purpose of building side tracks and spurs to reach the different mills and manufacturing plants which are now, or may hereafter by, built in such locality; that only a small portion of such right of way is used and occupied by the railroad track; and that the land will be benefited and its market value increased by the imrpovement. These findings are sustained by the record. The ordinance creating the district and directing an assessment upon all abutting property according to frontage, was a legislative determination by the city council that all abutting property within such district will be benefited. With perhaps occasional exceptions involving fraudulent or arbitrary action, such legislative determination does not become the subject of review by the courts, but is final. Smith v. Mayor, etc., of Worcester, 182 Mass. 232, 65 N.E. 40, 59 L.Ed. 728; Duncan v. Ramish, 142 Cal. 686, 76 P. 661; Chicago, etc., R. R. Co. v. City of Joliet, 153 Ill 649, 39 N.E. 1077; C. & N.W. Ry. Co. v. Elmhurst, 165 Ill. 148, 46 N.E. 437; People ex rel. Scott v. Pitt, 169 N.Y. 521, 62 N.E. 662, 58 L. R. A. 372; I. C. R. R. Co. v. People, 170 Ill. 224, 48 N.E. 215.

In Prior v. Construction Company, 170 Mo. 439, 451, 71 S.W. 205, 208, the court said: '* * * The question of whether the plaintiff's lots would or would not be benefited by the construction of this sewer is a legislative, and not a judicial, question, and the municipal Legislature adjudged that they would be benefited and fixed the ratio of such benefit, when it established the joint sewer district, and as there is no question of fraud or oppression of the municipal assembly in so passing such ordinance (even if such allegation would convert the question into a judicial one, as to which it is not necessary now to decide), such judgment of the assembly is conclusive.' In Lightner v. City of Peoria, 150 Ill. 81, 87, 37 N.E. 69, 71, it is said: 'As already seen, the imposition of the tax is, of itself, a determination by the legislative authority of the city that the benefits to the contiguous property will be as great as the burden imposed. There is necessarily vested in the city council a large discretion in determining the extent of the improvement, what shall be included within it, and the nature and character of it. By the statute they are expressly authorized to determine that the improvement shall be made and paid for by special taxation of contiguous property, and, unless there has been a clear abuse of the power and discretion conferred upon the city council, courts are powerless to interfere.' Judge Cooley, in his work on Taxation (3d Ed.) vol. 2, at page 1208, says: 'It has been repeatedly decided that the legislative act of assigning districts for special taxation on the basis of benefits cannot be attacked on the ground of error in judgment regarding the special benefits, and defeated by satisfying a court that no special and peculiar benefits are received. If the Legislature has fixed the district, and laid the tax for the reason that, in the opinion of the legislative body, such district is peculiarly benefited, its action must in general be deemed conclusive.' In his work on Constitutional Limitations, at page 729 et seq., Judge Cooley says: 'On the other hand, and on the like reasoning, it has been held equally competent to make the street a taxing district, and assess the expense of the improvement upon the lots in proportion to the frontage. Here also is apportionment by a rule which approximates to what is just, but which, like any other rule that can be applied, is only an approximation to absolute equality. But if, in the opinion of the Legislature, it is the proper rule to apply to any particular case, the courts must enforce it.'

The appellant contends that the land held and used by it as a right of way cannot be assessed for local street improvements; that a special assessment can only be levied when a special benefit produced by the improvement inures to the property assessed; that, unless it can be affirmatively shown that some special benefit does result, no assessment can be imposed; that the strip of land used solely as right of way for railway trains is not benefited by the improvement of an abutting street; that the public use to which the land is exclusively devoted is not thereby rendered more valuable; that trains can pass and repass as well without as with the improvement; that appellant only occupies its land as a right of way, not owning the fee, and that its easement is not subject to special assessment. Although the appellant may not hold the fee-simple title, there is no reasonable or immediate probability that it will abandon the land. Its use will doubtless be perpetual. Appellant is therefor for all practical purposes the substantial owner. The fee, subject to its use and easement, is of but little value, if any. Except for appellant's occupancy, no suggestion would be made that the land was not benefited by the improvement, or that it would not be subject to the assessment. The particular use of the land cannot affect its liability to assessment. 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 specially benefited by the local improvement. The benefit is presumed to inure, not to such present use, but to the property itself, affecting its value. Appellant cites the following authorities to show that its right of way cannot be subjected to special local assessments: Village of River Forest v. Chicago & N.W. Co., 64 N.E. 364, 197 Ill. 344; N.Y. & N.H. R. R. Co. v. City of New Haven, 42 Conn. 279, 19 Am. Rep. 534; City of Philadelphia v. Philadelphia, etc., R. Co., 33 Pa. 41; Junction R. Co. v. City of Philadelphia, 88 Pa. 424; City of Boston v. Boston & A. R. Co., 49 N.E. 95, 170 Mass. 95; Detroit, G. H. & M. Ry. Co. v. City of Grand Rapids, 63 N.W. 1007, 106 Mich. 13, 28 L. R. A. 793, 58 Am. St. Rep. 466; Chicago, M. & St. P. R. Co. v. Milwaukee, 62 N.W. 417, 89 Wis. 506, 28 L. R. A. 249; Borough of Mount Pleasant v. B. & O. R. Co., 20 A. 1052, 138 Pa. 365, 11 L. R. A. 520; City of Alleghany v. Western Penn. R. Co., 21 A. 763, 138 Pa. 375; Naugatuck R. Co. v. City of Waterbury, 61 A. 474, 78 Conn. 193. While these cases seem to be in point, there is a sharp conflict of authority on this question. We think the best-considered cases and the weight of modern authority, from which citations are hereinafter made, are opposed to appellant's contention. No citation of authority is necessary in support of the fundamental principle that the right of a municipality to levy special assessments depends on statutory enactment, and that it has no existence unless there be a valid statute conferring it. It is also elementary that the whole theory of special assessment is based on the doctrine that the property against which it is levied derives some special benefit from the local improvement. The appellant makes no contention that the assessment was not levied by regular statutory procedure, that it was not made proportionately on all lands in the district, or that any statute expressly exempts its right of way. Its position seems to be that, having shown the exclusive use of the land for a right of way, it must be conclusively presumed that it has not been benefited by the improvement, and therefore cannot be assessed at all. In other words, it does not question the amount of the assessment levied, but the validity of any assessment. This position cannot be sustained. After the proper legislative authority (in this case the city council) has by ordinance established a local improvement district, which includes all abutting property, and has directed an assessment according to frontage,...