121 P. 306 | Cal. Ct. App. | 1911
In proceedings had and taken by the city of Los Angeles for the purpose of opening and widening Sixteenth street, pursuant to the provisions of the street opening act of 1903, an assessment for the cost of the proposed improvement was levied against the lands and property located within the boundaries of the district as specified in the ordinance of intention. Among other assessments was one levied upon certain property of plaintiff within the district so established, which assessment so made was as follows:
"All ties, tracks, poles, wires, switches, franchises, etc., used in operating an electric street railway on Sixteenth street, between the west line of Figueroa street prolonged southerly across Sixteenth street and the intersection of said electric street railway tracks with the electric street railway tracks of the Los Angeles Interurban Railway Company at Georgia street, and between the intersection of the said electric street railway tracks with the electric street railway tracks of the Los Angeles Interurban Railway Company at Burlington avenue and the east line of Pacific avenue prolonged southerly across Sixteenth street."
Plaintiff refused to pay the assessment and the property so assessed was advertised for sale on account of delinquency in the payment thereof; whereupon this action was instituted, praying that defendants, as said board of public works, be perpetually enjoined from making such sale. Judgment went for plaintiff and defendants appeal therefrom on the judgment-roll.
The property assessed constitutes a part of an electric railroad owned and operated by plaintiff within and extending from the city to points outside thereof.
The chief ground urged in support of a reversal involves the question as to whether the property described is subject to an assessment under the act pursuant to the provisions of which the proceedings were had. Appellants base their right to make the assessment upon section 16 of the act, which requires *649 the street superintendent, upon delivery to him of a diagram made by the city engineer showing "each separate lot, piece, or parcel of land within the assessment district," together with the dimensions of each such parcel (Id., sec. 15), to "assess the total expense of the proposed improvement upon and against the lands, including the property of any railroad or street railroad within said assessment district, . . . in proportion to the benefits to be derived from said improvement."
Property is a generic term, and since it includes anything which may be the subject of ownership (Civ. Code, sec.
Included in the assessment was the franchise, whereby was granted the right to construct, maintain and operate plaintiff's railroad along and over that portion of the street within the boundaries of the district. The Appeal of the NorthBeach M. R. R. Co.,
Since the easement created constituted a piece or parcel of land, it must follow that the improvements, consisting of poles, wires, ties, rails, etc., constructed thereon and affixed to the land pursuant to the terms of the grant and necessary to the use of the easement for the purpose granted, must be deemed a part of such piece or parcel of land. (Appeal of North Beach M. R. R. Co.,
The judgment is reversed.
Allen, P. J., and James, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 12, 1912, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 9, 1912.