Soo Line R. Co. v. City of Neenah

• Decision Date: 01 October 1974
• Docket Number: No. 215,215
• Citation: 64 Wis.2d 665,221 N.W.2d 907
• Parties: SOO LINE RAILROAD COMPANY, Appellant, v. CITY OF NEENAH, Respondent.
• Court: Wisconsin Supreme Court

Page 907

221 N.W.2d 907

64 Wis.2d 665

SOO LINE RAILROAD COMPANY, Appellant, v. CITY OF NEENAH, Respondent.

No. 215.

Supreme Court of Wisconsin.

Oct. 1, 1974.

Whyte, Hirschboeck, Minahan, Harding & Harland, Reginald W. Nelson, Milwaukee, for appellant.

Duane G. Philis, City Atty., Neenah, for respondent.

DAY, Justice.

Sec. 75.65, Stats. (1955), ¹ now sec. 66.64, is the statutory authority for levying special assessments for sanitary sewer installation against railroad property.

Since 1912 the law of Wisconsin has been that a railroad is subject to special assessments for sewers laid along its right-of-way for benefits derived "in its general relation and apart from its particular use." Chicago, M. & St. P.R. Co. v. Milwaukee (1912), 148 Wis. 39, 44, 133 N.W. 1120, 1122. This court in the Chicago Case, p. 44, 133 N.W. p. 1122, held the predecessor to sec. 75.65, Stats., ch. 425, Laws of 1903, was an "express and unambiguous declaration" by the state legislature "upon a subject over which it has full power, which closes the question." This court cited as authority Louisville & N.R. Co. v. Barber Asphalt Paving Co. (1905), 197 U.S. 430, 25 S.Ct. 466, 49 L.Ed. 819, which was a challenge under the Equal Protection Clause of the United States Constitution by a railroad against a special assessment under a Kentucky statute for a street improvement laid along its right-of-way. Just as Soo Line does here, the railroad in Louisville said there was no benefit to the railroad from the improvement. The court said the question of benefit or no benefit to the land shall be considered simply on its general relations and apart from its particular use; '. . . it is enough that the land could be turned to purposes for which the paving would increase its value,' 197 U.S. at 435, 25 S.Ct. at 468. The court held the Equal Protection Clause was not violated.

In Superior v. Lake Superior T. & R.R. Co. (1913), 152 Wis. 389, 391, 140 N.W. 26, this court disposed of another challenge by a railroad to the special assessment statute and said it was settled in this state that railroad property is subject to assessment for local improvements as is private property. In considering the benefits resulting from such improvement, railroad property is to be considered, not in reference to its present use but 'with reference to its adaptability for other and general uses in the future', 152 Wis. at 391, 140 N.W. at 27.

The adaptability for other and general uses in the future of the land in the case at bar is made clear by the stipulation of the parties at the time that the matter was heard in circuit court. It was stipulated that:

'The sixty-six (66) foot right of way of the Soo Line Railroad Company can be utilized for building if the tracks were removed, since the City of Neenah Zoning Ordinance has since--at least since--May 1, 1954 provided that in Industrial District No. B the building setback line shall not be less than ten (10) feet, and that there shall be a rear yard of not less than twenty-five (25) feet, except where other loading or unusual loading facilities are made available no rear yard is required.'

It is clear that for such type use the sanitary sewer would be of benefit.

Thus for over 60 years, this court and the United States Supreme Court have recognized the authority of the legislature to declare that railroad property is subject to assessment for special improvements, the same as the property of individuals. Our court and the United States Supreme Court have said it is proper, in spite of the ordinary long-term commitment to present right-of-way use, to look to adaptability for other uses in the future and assess benefits accordingly. As Justice Holmes said in the Louisville Case, 'On the question of benefits the present use is simply a prognastic, and the plea a prophecy.' 197 U.S. at 435, 25 S.Ct. at 468.

In the case at bar, it was stipulated that though the sewer in question was a trunk sewer, the railroad company right-of-way was not assessed for the full depth and pipe size, but was only assessed for the depth and pipe size necessary to service the property and on the same basis as the property situated on the west side of Harrison street.

Neenah declared that the amount assessed was the 'benefit.'

The record shows three parcels on the west side of Harrison street were assessed at $558, $5,437.40, and $2,697.00, respectively, for a total of $8,692.40. The railroad was assessed $8,630.40. On the facts in this record, we find nothing unfair in the manner in which the assessment was divided between the occupants of the east and west sides of Harrison street.

The railroad has cited a number of cases for the proposition that assessments must be for a benefit and if in excess of the benefit it violates the provision in the constitution prohibiting the taking of property without just compensation. The principle cited is sound, but in view of the adaptability of the property in the case at bar to other uses, as shown by the stipulation, the principle is not offended.

At no time did the railroad come forward with evidence that the use to which the property could be put would not be benefited by the installation of the sewer, nor did it...