139 P. 669 | Cal. Ct. App. | 1914
Lead Opinion
The stipulated and admitted facts in this case are: That plaintiff at all times material to the matters in controversy was a railroad corporation engaged as a common carrier of freight and passengers, and operating a line of railroad from the bay of San Pedro in Los Angeles County, through the city of Long Beach and other portions of the state of California, to the city of Salt Lake in the state of Utah; that said corporation was the owner of certain ground extending through the city of Long Beach which it actually used in the operation of its railroad; that in the year 1910 certain proceedings were had and taken by the common council of the city of Long Beach whereby it was proposed to construct a combined bulkhead and sidewalk within the limits of the municipality under authority given by an act of the legislature (Stats. 1901, p. 34); that by these proceedings an assessment district was established and an assessment attempted to be levied upon the land of plaintiff, and that the defendant, in default of the payment of such assessment, threatened to make sale of the property to satisfy the charge made against it. The proceedings were all completed during the year 1910, and the threatened sale was to have taken *677 place on the seventh day of October of that year. By the stipulation of the parties it was further agreed that all of the proceedings had by which authority was claimed to be given to make the proposed sale were in due form.
Plaintiff brought this action to have the assessment as to it declared null and void and to secure an injunction to prevent any sale being made of its property. A preliminary restraining order was issued, but upon trial being had, the case being submitted on a stipulation as to the facts, in substance as they are set out in the foregoing, judgment was entered in favor of defendant. This appeal, taken from that judgment, followed.
The contention of plaintiff is that as against the right-of-way and property incident to the actual maintenance and operation of the business of a common carrier, a municipality possesses no right to levy such an assessment as that proposed to be collected, or to make any sale of such property to satisfy that claim. The case of Southern CaliforniaRy. Co. v. Workman,
What is said in the foregoing presupposes a condition of the case where the intention of respondent was to sell every interest possessed by appellant in the land. The decision in the Workman case reserved from adjudication the question as to whether the fee or reversionary title of property to which an easement of a right-of-way is attached, might not be sold, leaving undisturbed the easement right. Later the case ofFox v. Workman,
In the case at bar it was stipulated, first, that the appellant was the owner in fee of the real property described in the assessment; that respondent proposed to sell the property. The following paragraph is then set out in the written stipulation of facts: "That there is now, and for more than two years last past has been, affixed to and located over, along and *680 upon the above described parcels of land, a portion of the main line of the railroad owned and operated by the plaintiff under its charter and franchise, consisting of standard gauge tracks, the center lines of which are shown in red upon the map hereto attached, . . .; and said parcels of land above described are now, and have been during all the times herein referred to, used by the plaintiff for the sole and only purpose of operating its railroad thereon as a common carrier in accordance with the provisions of its charter."
The term "right-of-way" denotes the tenure by which land is held; it is descriptive of the easement right and not of the land to which it is affixed. (Uhl v. Ohio River R. Co.,
The judgment and order are reversed.
Conrey, P. J., and Shaw, J., concurred.
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 March 10, 1914. *681
Beatty, C. J., dissented from the order denying a rehearing by the supreme court, and filed the following opinion on March 10, 1914.
Dissenting Opinion
I dissent from the order denying a rehearing.
The cause is decided on the authority of Southern CaliforniaRy. Co. v. Workman,