Los Angeles Pacific Co. v. Hubbard

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 19-03, 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 re

Property is a generic term, and since it includes anything which may be the subject of ownership (Civ. Code, sec. 654), its meaning in a given case, and whether or not limited in application, must be determined by ascertaining the sense in which it is used. It is apparent from a reading of the act that the legislature used the term “property” as applying to land only. Indeed, throughout the act the words “property,” “lands,” and “each lot, piece, or parcel of land,” are used interchangeably. Section 15 requires each lot, piece or parcel of land to be designated upon a diagram, which diagram forms the basis for the acts of the superintendent in making the assessment. Section 17 prescribes the manner of making the assessment, the amount of which shall be set opposite each “lot, piece, or parcel of land,” which assessment (section 20) shall be a lien upon “the property against which it is made.” Upon offering the property for sale for delinquent assessments, it shall be sold (section 23) to the one who will take the “least quantity of land” and pay the assessment, and to whom the street superintendent shall execute a certificate of sale (section 26), “setting forth a description of the property sold.” These and other provisions clearly indicate that in requiring the superintendent of streets to assess the “property of any railroad or street railroad within said assessment district, ’ ’ the legislature used the word “property” in a limited sense, and as having reference to that species of property only designated as land, which is “the solid material of the earth.” (Civ. Code, sec. 659.) Hence, it follows there was no authority for the action of the superintendent of streets in levying an assessment'against the “ties, tracks, poles, rails and switches” as such, entering into the construction of plaintiff’s street railroad and used in the operation thereof. He might with equal propriety have as

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 North Beach & M. R. R. Co., 32 Cal. 499 , and cited with approval in subsequent cases, is authority for the statement that such right constitutes an estate in the land of the street. In discussing a like question involving an assessment for benefits accruing to a street railroad in the widening of Kearny street in San Francisco, the court said: “Thus it appears that the' appellant has acquired an interest in the soil in Kearny street ; that it consists in the location of the road in the street, its right to lay down rails and attach them to the soil, and to run its cars over them for profit; its right to the exclusive use of them aud the streets, so far as is necessary for the purpose, in the mode prescribed; that this interest is property—an interest in the land—and that it is real estate, and the rails thus laid down, attached to the soil and annexed to the easement became themselves a part of the land—of the estate of the company—and that, in those states where no special provision is made for taxing this species of property in a different mode, it is assessed as real estate in the same manner, and upon the same principles, as land—as if the company owned the land itself upon which the track is laid to the extent of its interest in it. ... It is as immovably established on the particular portion of the earth as the lot occupied by stores fronting on the same street, and the estate in the one can no more be enjoyed away and apart from its fixed locality than the estate in the other.” (See, also, Stockton G. & E. Co. v. San Joaquin Co., 148 Cal. 313 , [ 83 Pac. 54 , 5 L. R. A., N. S., 174 , 7 Ann. Cas. 511].) That a street railroad company operating its line along and over a street under a franchise so to do may be largely benefited by the widening of the street, and may therefore be required to pay the cost of such improvement in proportion to the benefits received, must be conceded. (Appeal of North Beach & M. R. R. Co., 32 Cal. 499 .) Indeed, the proposition is admitted by learned counsel

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., 32 Cal. 499 , and cases therein cited.) The assessment of the franchise, a term used to designate plaintiff’s estate in the land, constituted an assessment of all the property included in the term “land,” when applied to plaintiff’s interest in the street. The greater includes the less, and since the “ties, tracks, poles and switches” were included in the term “franchise,” upon which the assessment was levied, the specific mention of these improvements must be deemed surplusage, and while unauthorized by statute, gives no ground for enjoining the sale. Any objection to the form or amount of the assessment should be made to the council, which, by section 19 of the act, is authorized to correct, change, or modify the same.' We think it clearly appears that it was the intent of the legislature that the rights

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.