I dissent from the order denying a rehearing of this cause by the court in Bank. The principal question presented by the two appeals is new and important, and I think has been decided without sufficient consideration of the consequences involved in the precedent we are making, and without any consideration of a proposition the correct determination of which is absolutely essential to a just conclusion upon the matters in controversy. *Page 87
The statement of the case in the Department opinion is in some respects inaccurate and obscures the real question to be decided. The appeal from the judgment and the appeal from the order each rests upon its own separate record. The case on the appeal from the judgment is presented by the complaint and the default decree. The case on the appeal from the order granting a temporary injunction is presented by the complaint, the bill of exceptions, setting forth the evidence introduced at the hearing of the motion, and the order. The record on this latter appeal shows fully and clearly the actual state of facts out of which the controversy arises. The record on the appeal from the judgment shows only the facts alleged in the complaint and admitted by the demurrer. The assessment of the so-called "right of way" is not set out in the complaint, but does appear in full in the bill of exceptions constituting a part of the record on the appeal from the order. The opinion of the court, however, which deals exclusively with the appeal from the judgment, quotes a portion of the assessment ("Being the Southern California Railway right of way," etc.), in order to show (if that is what the opinion means) that it was evidently the intention to assess the mere easement of the right of way. If, instead of the language so quoted, the whole assessment had been set out as it appears in the bill of exceptions, it would be seen that there was no attempt to assess an easement as such, but simply an assessment to unknown owners of a tract of land described rather indefinitely by boundary-lines, but identified by the additional term of description: "Being the Southern California Railway right of way between Avenues 33 and 50." It may be true that this and the other evidence contained in the bill of exceptions will serve as an aid to interpretation in dealing with ambiguous phrases used in the complaint, but for this purpose the whole must be taken, and not a part — and considering the whole evidence together in connection with the argument of plaintiff's counsel as contained in the briefs, it is very evident that the phrase "right of way" in plaintiff's mouth means not a mere easement of one person in the lands of another, but the strip of land over which the line extends, whether owned by the railway company or by another. It is in this untechnical sense that the expression is used by the assistant engineer of the plaintiff in his affidavit constituting *Page 88 the principal evidence offered by plaintiff on the hearing of the motion. He deposes that the plaintiff acquired different portions of its "right of way" by various bargain and sale and quitclaim deeds, and as to that portion of the so-called right of way with which we are particularly concerned, — the portion, that is to say, about one thousand feet in length, which actually abuts upon Pasadena Avenue, — he sets out the description of the property so conveyed as follows: "Being a strip of land thirty feet wide on each side of the center line of the railroad track of the California Central Railway," etc. "Also a strip of land on the westerly side of the foregoing described strip and adjoining the same forty feet wide and 900 feet long, being four hundred and fifty feet north and the same distance south from the center line of Morgan Station as now located. Also" (other adjacent strips similarly described). In short, the evidence plainly shows that what the plaintiff calls its "right of way" is really and truly a strip of land, sixty feet in width for the most part, along the center line of which its track extends, and which it owns in fee. For about one thousand feet where it abuts on Pasadena Avenue this strip is extended back forty feet farther to accommodate a railway station, and the whole strip one hundred feet in width is likewise owned by the plaintiff in full property. It has no easement, it owns the soil, but calls it nevertheless its "right of way."
The assessor in his effort to make his description of the tract assessed definite and certain, merely used the expression "right of way," in the sense in which the plaintiff's witnesses use it — the sense in which it is often used in the records and briefs that come to this court, and the sense in which we can take judicial notice it is commonly employed by railroad men. (SeeSouthern Pacific Co. v. Burr, 86 Cal. 279.) Looking to the assessment itself as it appears in the bill of exceptions, no other possible construction can be placed upon it than that of an assessment of a tract of land, and all the other evidence tends only to strengthen this view. It is also clear that the plaintiff was the owner in full property of all that portion of the tract abutting on Pasadena Avenue. The question, therefore, which is really presented on the actual facts of the case is whether a lot of land abutting on a public street ceases to be assessable as such for its proportion per front foot of the *Page 89 cost of grading, etc., when acquired and used by a railroad company for laying its track and operating its trains. But the question to be determined on the appeal from the judgment depends not on the facts as proved at the hearing of the motion, but on the facts alleged in the complaint and confessed by the demurrer, and it is necessary to consider whether there is any material difference between the facts alleged and the real facts. I do not think there is. It is alleged that there was an attempt to assess the right of way. but what the assessor actually did is not alleged specifically, and the assessment as it appears of record is not set forth. The allegation is rather of a conclusion of law than a matter of fact, and, construed with reference to other allegations, evidently means no more than what is in fact true that he assessed the strip of land which plaintiff calls its right of way. It is alleged, for instance, that the holder of the land demanded of the defendant Workman that he should sell the right of way to satisfy the bond, and thereupon defendant published the notice, a copy of which is incorporated in the complaint, and that unless restrained defendant will under said advertisement and notice attempt to sell the right of way, etc. Looking to the notice itself, we find that it says nothing about selling a right of way, but merely announces the sale of a tract of land. In short, when the phrase "right of way" is construed in the sense in which plaintiff uses it in the complaint itself, it can be seen that nothing inconsistent with the truth is alleged, and so the question is the same in both appeals, Does a lot of land abutting upon a public street become unassessable for street improvements when acquired and used by a railroad company for laying its track and operating its trains? In effect, the opinion of the court holds that it does become exempt from the burden which the law imposes upon all other property similarly situated. For although the decision only declares in terms that there is no authority for making an assessment upon a right of way, it means, when construed with reference to the facts of the case, that you cannot assess or sell a tract of land belonging to a railroad company if its track extends over it without expressly exempting the right of way; that is to say, without reserving to the company in the express terms of the sale the exclusive right to use the land for all the purposes of its traffic. The *Page 90 proposition broadly laid down is, that a part of a railroad company's right of way cannot be sold on execution or for a street assessment. Of course it is consistent and logical to say that such property cannot be assessed if it cannot be sold, for there is no possible way of enforcing a delinquent assessment for street improvements except by a sale of the abutting lots, and an assessment which binds no one is equivalent to no assessment at all.
But I dispute the proposition that a right of way cannot be sold on execution or for a street assessment. As to executions, the unsoundness of the proposition is easily demonstrated by a simple example: Suppose a tract of land subject to a judgment or mortgage lien to be sold by the mortgagor or judgment debtor to a railroad company and crossed by its track; or suppose, instead of a sale of the land, a grant of the mere easement of the right to lay and operate the track. Can it be pretended that the judgment creditor or mortgagee would not have the right to sell the land on execution freed of the servitude if necessary to satisfy the lien? I imagine his right to make the sale will scarcely be denied, and yet all the direful consequences to the public and the company — stoppage of traffic, forfeiture of franchise, etc. — would follow just as surely (or rather they would be just as surely avoided by a satisfaction of the debt and discharge of the lien) upon such a sale as upon a sale for a delinquent street assessment. For this reason I say the opinion is here again perfectly logical and inconsistent in putting sales upon execution and sales to satisfy delinquent assessments upon the same footing; all the reasons advanced against the right to make such sales have the same application to one as to the other. I go further and say that all the reasons in favor of the right to sell on execution in the case supposed apply with equal force in favor of the right to sell in satisfaction of a delinquent street assessment. By the general laws of the state an equal burden is imposed upon all abutting lots in proportion to frontage for the purpose of improving the street. The front-foot rule being the basis of apportionment, the law would be unconstitutional if it did not have a uniform application, and an assessment upon a part only of the frontage to pay for any particular improvement would be void. Neither the legislature by statute nor the assessor by his assessment *Page 91 can by exempting a portion of the frontage impose an excessive burden upon the balance. (People v. Lynch, 51 Cal. 15.1) And what cannot be done directly cannot be done indirectly. The legislature could not, if it would, exempt a lot owned or used by a railway company from its liability to contribute equally with other lots similarly situated to the expense of street improvements. But there has been no attempt to confer any such exemption by the legislature. By the law, all abutting property is subjected to a uniform charge in proportion to frontage, and when an improvement is made the lien, till then merely potential, becomes fixed and definite, and there is no more reason why the property should not be sold in satisfaction of such a lien than there is for saying it could not be sold to satisfy the lien of a judgment or mortgage in the case above supposed.
The serious consequence to flow from this decision is, that hereafter when any part of the lots fronting on a public street is used by a railway company for its track, the street must remain unimproved, for the assessment cannot include the whole frontage, and if it does not it will be void, according to the decision in People v. Lynch, 51 Cal. 15,1 and the cases in which that decision has been followed and affirmed.
1 21 Am. Rep. 677.