45 A.2d 109 | Md. | 1945
Maryland and Pennsylvania Railroad Company, a Maryland corporation operating trains between Baltimore and York, was assessed $630.06 for the cost of repaving part of an alley through which it has a right of way south of Cold Spring Lane. The railroad company protested the assessment on the ground that the repaving does not benefit the right of way, but the Appeal Tax Court sustained the assessment. The appeal is now from an order of the Baltimore City Court affirming the Appeal Tax Court.
It is a well established doctrine that the Legislature has the constitutional right to delegate to a municipal corporation the power to impose the entire cost of paving a street on the property abutting thereon instead of on the community at large.Moale v. Baltimore,
It is recognized that a special assessment can be levied upon abutting property to defray the cost of public improvement only on the theory that the property will derive special benefit other than the general benefit to the public at large. Baltimore v.Hanson,
In this case the right of way is only twenty-four feet wide, and is used for no purpose except the roadbed for its railroad track. It cannot possibly be used for building purposes. In the first place, the deed, by which it was acquired in 1880, contains the restriction that no part of it shall be used for depot purposes. Second, under the standards of safety, no structure can be built closer than eight feet from the middle of the track, and *434
thus only four feet of the right of way would be available for structures of any kind, and obviously not even a water tank or tool house could be built on such a narrow strip of land. Third, the railroad company has no right, title or interest in the alley between the right of way and the paved surface, and since a spur track could not be laid, the repaving could not furnish any improved means of access to the railroad that can be practically availed of for railroad purposes. E.E. McLellan, chief engineer of the railroad, who has had an experience of forty-five years in railroad work, testified that the repaving could not possibly benefit the right of way. The case is analogous to UnitedRailways Electric Co. v. Baltimore,
It has been urged by the City that the roadbed for some distance is lower than the paved surface, and that there has been an eastward drainage of surface water across the alley toward the right of way. It was testified that drainage had eroded the embankment on the west side of the alley, and the repaving was done after the health commissioner had complained that the disrepair of the paving caused an unsanitary condition. However, while there may have been erosion of the embankment the roadbed of the railroad had not been affected by drainage for the reason that all the surface water had been carried off by a ditch. Consequently the railroad has not been appreciably benefited so far as *435
drainage is concerned. It would be unjust to levy a substantial assessment for paving and attempt to justify it on the ground of a change in drainage, when the abutting owner is not benefited by the change. If an assessment for local improvements is obviously unjust and confiscatory, it violates Article
The Baltimore City Court, in sustaining the assessment, ignored the testimony of the chief engineer because it dealt only with the present use of the land, and not with the possibility of a different use in the future. It is entirely true that the United States Supreme Court announced in 1905 in Louisville NashvilleR. Co. v. Barber Asphalt Paving Co.,
The right of way of the Maryland and Pennsylvania Railroad Company was acquired for a roadbed to effectuate the purpose for which a franchise was granted by the State. This narrow strip of land has been used exclusively for a track for sixty-five years, and there is no suggestion that the railroad company is contemplating an abandonment of the track. The railroad is operated for the use of the public, and the corporation is not at liberty to dispose of its right of way at any time. As stated by the New York Court of Appeals in People ex rel. New York CentralR. Co. v. Limburg,
Finding no evidence that the repaving will confer any practical benefit upon the right of way by enhancing the railroad use, so as to form the basis for a special assessment, we must reverse the order of the Baltimore City Court and remand the case for the passage of an order reversing the order of the Appeal Tax Court.
Order reversed and case remanded, with costs to theappellant. *437