San Pedro, Los Angeles & Salt Lake Railroad v. Pillsbury

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 he 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

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 California Ry. Co. v. Workman, 146 Cal. 80 , [2 Ann. Cas. 583, 79 Pac. 586 , 82 Pac. 79 ], is relied upon as furnishing authority for appellant’s position. In that decision it is declared that an attempt to. enforce an assessment against the right-of-way of a railway corporation is without authority of law. It was there said: “To enforce an assessment against such right-of-way and track, extending about half a mile in distance, by a sale and conveyance, would necessarily dismember and break up the entirety and utility of the road as a line of travel and commercial intercourse, and interfere with and impair the paramount interests which the public have in it for three purposes. The property of the corporation in its road and appurtenances essential to its operation and use, annexed to the franchise of the company to maintain and operate its road, is an entirety, and is thus charged, in the hands of the company, with an important trust in favor of the public, though the property in all other respects is essentially private, and operated for private gain. Public policy would seem to forbid a severance and segregation of its several special or particular parts, essential to the exercise of the franchises and the use and operation of the road, in forced sale upon legal process, or for an assessment.” The supreme court in that decision cited other cases to the effect that the doctrine was a settled one that a lien would not

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 ease of Fox v. Workman, 155 Cal. 201 , [ 100 Pac. 246 ], arose, that being a suit to recover damages against the municipal treasurer because of his refusal to make a sale on the same property and under the same assessment involved in Southern California Ry. Co. v. Workman, except that the bondholder therein insisted that he was asking only for a sale of the fee subject to the easement. In considering the latter appeal, the supreme court said: “The opinion of the court (referring to Southern California Ry. Co. v. Workman, 146 Cal. 80 , [2 Ann. Cas. 583, 79 Pac. 586 , 82 Pac. 79 ]) states that it was evidently the intention to assess and sell the right-of-way as described in the assessment. If such easement had not been included in the proposed sale, there would, under the views expressed by the court regarding a sale of the fee, have been nothing to enjoin.” The court determined that Fox, the plaintiff, had demanded a sale of both the fee and easement, and that he could not prevail.

In the ease 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

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., 51 W. Va. 106 , [ 41 S. E. 340 ]; Atlantic & Pacific R. Co. v. Lesueur, 2 Ariz. 428 , [ 1 L. R. A. 244 , 19 Pac 157 ].) The fact appears then that the property which was proposed to be sold was being used for the purposes for which a railroad ordinarily uses its right-of-way. It is not made to appear that there would be offered for sale the fee subject to the reserved easement in the railroad company to continue to use the ground for right-of-way purposes. If appellant owned the fee in the land, as is admitted', then every lesser interest was merged therein. No person can have an easement in land which he himself owns. (Jones on Easements, sec. 835.) And if, as is also admitted, the only uses to which the land was being put were those necessarily incidental to the operation of appellant’s railroad and its business as a common carrier, then the sale proposed to be made would seem to contemplate that appellant’s whole interest in the property should be.taken away. Whether a sale would actually accomplish this result is not the question; if, under the conditions shown as to appellant’s interest in the land, the apparent design of the proceedings was appropriate to accomplish that result, appellant is entitled to the remedy which is sought in this action.

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.

I dissent from the order denying a rehearing.

The cause is decided on the authority of Southern California Ry. Co. v. Workman, 146 Cal. 80 , [2 Ann. Cas. 583, 79 Pac. 586 , 82 Pac. 79 ], and the grounds of my dissent from the present order are fully stated in my dissenting opinion in that case.