Summary
In Alabama City v. Alabama Power Co., 213 Ala. 644, 106 So. 39, the question was raised as to the right to make an assessment against a portion of the right of way, a strip outside the track, and alleged not to be essential to the performance of the public service of the transportation company.
Summary of this case from City of Mobile v. Mobile O. R. Co.Opinion
7 Div. 547.
October 29, 1925.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Disque Disque, of Gadsden, for appellants.
For purposes of taxation, railroad roadbed, right of way, and track are to be assessed and dealt with, in collection of taxes and sale for taxes, as all other lands. Purifoy v. Lamar, 112 Ala. 123, 20 So. 975; T. C. v. East Ala. R. Co., 75 Ala. 516, 51 Am. Rep. 475; Nor. Pac. v. Seattle, 46 Wn. 674, 91 P. 244, 12 L.R.A. (N.S.) 126, 123 Am. St. Rep. 955; Heman Cons. Co. v. Wabash, 206 Mo. 172, 104 S.W. 67, 12 L.R.A. (N.S.) 112, 121 Am. St. Rep. 649, 12 Ann. Cas. 630. An injunction should not be granted upon mere apprehension that some illegal act will be done. O'Rear v. Sartain, 193 Ala. 275, 69 So. 554, Ann. Cas. 1918B, 593; Alston v. Dunn, 176 Ala. 421, 58 So. 300; Goodson v. Dean, 173 Ala. 301, 55 So. 1010; Sou. Ry. v. Albes, 153 Ala. 523, 45 So. 234; McHan v. McMurry, 173 Ala. 182, 55 So. 793. Decatur v. Sou. Ry., 183 Ala. 531, 62 So. 855, 48 L.R.A. (N.S.) 231, and 187 Ala. 364, 65 So. 536, are distinguishable from the cases cited above. In this case a space is left upon each side of the track, not necessary to the operation of cars, and no levy or advertisement for sale has been made.
Dortch, Allen Dortch, of Gadsden, and Martin, Thompson, Foster Turner, of Birmingham, for appellee.
An assessment for street improvements against a small portion of the right of way of a railroad operating as a public service corporation cannot be enforced by a sale of such portion of the right of way. Such assessment is a cloud upon title and will be removed by a court of equity, which will enjoin a threatened sale. City of Decatur v. Sou. Ry., 183 Ala. 531, 62 So. 855, 48 L.R.A. (N.S.) 231; Id., 187 Ala. 364, 65 So. 536; Port of Mobile Co. v. L. N., 84 Ala. 115, 4 So. 106, 5 Am. St. Rep. 342; Rea v. Long-street, 54 Ala. 291. The proceeding to enforce assessment against abutting property for street paving is in rem, will not support a judgment against the owner, and can only be enforced by sale of the assessed property. City of Huntsville v. Madison Co., 166 Ala. 369, 52 So. 326, 139 Am. St. Rep. 45; Payne v. Spragins, 207 Ala. 264, 92 So. 466.
Under the authority of City of Decatur v. Southern R. Co., 183 Ala. 531, 62 So. 855, 48 L.R.A. (N.S.) 231, and 187 Ala. 364, 65 So. 536, we are constrained to hold that the demurrers to the bill of complaint were properly overruled, and that there is equity in the bill as to its prayer for the removal of the cloud on complainant's title, caused by the assessment for paving improvements, as shown by the bill. In the City of Decatur Cases, supra, it was held (1) that an assessment for street improvement against a small portion of the right of way of a railroad company, engaged in the discharge of its functions as a public service corporation, as a going concern, cannot be enforced by a sale of that portion of the right of way; and (2) that, since there can be no personal judgment in such a case, the statutory remedy for collection in rem being exclusive, the special assessment was unenforceable, and amounted to nothing but a cloud on the title of the railroad, for the removal of which the bill in equity was maintainable.
Counsel for appellants recognize the force and effect of those decisions, but insist that they are not applicable to the case made by the instant bill, because (1) the bill shows that complainant has a right of way 25 feet wide, with about 9 feet on each side of its track, which could be sold without interfering with complainant's business or with the exercise of its franchise; and (2) in the Decatur Cases a section of the right of way had been actually levied upon and advertised for sale.
As to the latter distinction, it is clearly immaterial to the equity of the bill, since the assessment made by the city against complainant's right of way creates and fastens a cloud upon its title just as effectually and injuriously as would any subsequent step taken for its enforcement, by advertisement or otherwise.
As to the first objection, the Decatur Cases do not except from the operation of the rule declared any part of the railroad's right of way, and, moreover, the case made by the bill is against an assessment imposed indiscriminately upon defendant's right of way, which of necessity includes the roadbed and track. The suggested distinctions do not suffice to relieve this case from the controlling influence of the Decatur Cases, supra, and the decree of the trial court overruling the demurrers will be affirmed.
It may be noted that the right of the municipality to assess against the railroad the cost of street paving laid between its rails, and 18 inches on either side (section 2189, Code 1923), has been recently upheld by this court in the case of Ala. Traction Co. v. Selma Tr. Sav. Bank (Ala. Sup.) 104 So. 517.1 But under that statute the paving cost is made a personal obligation of the railroad, secured by a blanket lien on its entire property. Ala. Traction Co. v. Selma Tr. Sav. Bank (Ala. Sup.) 104 So. 517 (12), supra. But that statute and that decision have no application to this case.
Ante, p. 269.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.