This action is brought to recover the amount of benefits assessed upon the defendant for its proportional part of the expense incurred in paving a portion of Chapel street in New Haven, in and through which the defendant’s railroad track is laid. The defence is, first, that the defendant is not liable to assessment; and secondly, if liable, that this action will not lie, for the reason that the assessment can only be collected by enforcing the lien.
1. A preliminary question is made by the plaintiff, and that is whether the defendant is not now precluded from making this defence, on the ground that it can only be made on an appeal from the assessment, as provided in the charter. The charter provides in substance, that if any person shall be aggrieved by any such assessment, he may apply for relief to the Superior Court for the county of New Haven, and prescribes the time and manner of making the application. If the de*430fendant has any defence, we think it is not precluded from . making it in this action. It is not put on the ground that the assessment is disproportionate: If it was, it is quite clear that the defendant’s only remedy would be by application for relief to the Superior Court. But the defence is more radical —it denies the right of "the city to make any assessment. In this proceeding the city exercised limited and special powers. The extent of the jurisdiction is defined and limited by the charter. . If it acted within its jurisdiction, the assessment is valid and binding unless appealed from. If it acted outside of its jurisdiction, the act is unauthorized and void, and confers no rights upon the city, and imposes no obligation upon the party assessed. It being a jurisdictional question, and ■ relating to the proceedings of a tribunal with special and limited powers, we are clearly of the opinion that it is an open question in this action.
2. The next question in order is whether the defendant was liable to assessment, in respect either to its property or its franchise. It is conceded that all the proceedings in making the assessment were regular in form, and that the improvement for which it was made was authorized by the city charter. The objection is chiefly that the charter does not authorize an assessment upon the defendant’s property. The principal act, (Private Acts, vol. 5, page 769,) after authorizing the court of common council to order certain improvements, including the one now under consideration, provides that said court “ may, upon the execution of any such order, assess upon the persons whose property is especially benefited thereby a proportional and reasonable part of the expense thereof, and may estimate the particular amount of such expense to .be paid by any such person, &c.” The word “ property”, as used in this act, is broad enough to embrace at least some of the property owned by the defendant, so that perhaps it is unnecessary for us to consider whether the mere franchise is or is not hable to assessment. The defendant’s property consists in part of rails, sleepers, ties' and spikes, so laid into and attached to the soil in the street where the improvement was made as to become a part of the realty. That property so situated is real estate *431has been repeatedly decided. Providence Gas Co. v. Thurber, 2 R. I., 21; City of Chicago v. Baer, 41 Ill., 306; Appeal of North Beach & Mission R. R. Co., 32 Cal., 499; Farmers’ Loan & Trust Co. v. Hendrickson, 25 Barb., 494. We entertain no doubt that this ought to be regarded as real estate, and as such liable to assessment like any other- real estate especially benefited, unless there is something in the charter. showing that the legislature did not intend that this species of property should be assessed. We have carefully examined the charter and the various acts referred to, and are not sat isfied that the legislature had any such intention. There is nothing in them limiting in express terms the meaning of the word property; and there is hardly enough in the provis ions relating to liens to create such a limitation by implication. Without deciding the question whether a lien could or could not attach to this property, we are clearly of the opinion that the right and power to assess are in no way dependent upon a lien. The authority conferred by the legislature, and the proceedings of the court of common council pursuant thereto, created in the city a right to demand and receive from any person whose property was especially benefited thereby a certain sum of-money, and imposed upon the person so benefited a corresponding obligation to pay said sum 'of money. The act then provides that the amount assessed shall be a lien on the property benefited, and prescribes the manner of securing and enforcing the lien. Now if the legislature intended that as the only mode in which the assessment could be collected, then there may be some force in the argument; but if it was intended merely as security, in addition to a proper remedy at law, then the argument is without force. We are inclined to think that the latter is the proper construction. We ought not to put such a construction upon the statute as to compel the city to resort to a proceeding in equity to collect the assessment, unless it is clearly demanded by the language used. If by implication, it should not rest on slight grounds, but should be clear and decisive. Such a construction would be prejudicial to the interests of both parties. A petition for a foreclosure is at best an indirect method of collecting a *432debt. It is oftentimes, perhaps usually, quite as expensive, and quite as likely to end after protracted litigation, as an action at law. Embarrassing questions may arise in respect to the title, and the parties interested therein, and in the end the petitioner may be obliged to take real estate, and convert it into money as best he may. We are not satisfied that the legislature intended that the city should necessarily be subjected to all this risk and inconvenience. On the other hand, if in every instance when the assessment is not paid promptly, the city is obliged to resort to a lien, it might seriously embarrass the other party, by subjecting his property to an incumbrance against his will. In addition to these suggestions, we would call attention to the fact that the statute provides that the lien shall not continue for a period longer than sixty days after the publication of notice, unless the certificate required is lodged with the town clerk. Now it can hardly be supposed that the legislature intended that a failure to lodge such a certificate within sixty days should work a forfeiture of the whole claim; and yet such is the inevitable result if the defendant’s construction is correct. There is an obvious reason why the security should be lost; but we can discover none why the whole claim should be barred.
Another reason urged why this property should be exempt from assessment, is that the defendant’s charter requires it to keep that portion of the street covered by and lying between the rails, and two feet on either side thereof, in repair at its own expense; and that the legislature could not have intended to authorize the city to interfere with this duty, and deprive the defendant of the privilege of keeping it in repair in its own way. It is a very interesting and important question, whether the defendant, by objecting to these proceedings at the commencement, could have practically defeated the whole improvement; but the case before us does not require us to decide that question. The defendant suffered the city to go forward and incur the expense, with full knowledge of the proceeding, and without objection at .the time. The defendant must have known that the improvement would largely benefit it in the matter of repairs, that the proceeding was *433under the statute, and consequently at the expense, in part at least, of the parties benefited. There was no reason to suppose that the city was doing the work of the defendant at its own expense, or at the expense of other parties. The presumption therefore is, in the absence of any finding to the contrary, not only that the defendant consented to the making of the improvement by the city, but that there was an implied understanding that the defendant was to bear its fair proportiou of the expense. We think, therefore, that the defendant-should be estopped from setting up this claim.
That the defendant is benefited to some extent by the improvement is apparent. Whether it is benefited to the extent of the assessment, and whether the assessment is a fair proportion of the whole expense for the defendant to pay, are not now open questions. Those questions could only be heard on an application for relief under the statute.
On the whole we are satisfied that the defendant’s property was properly assessed.
3. The defendant in the next place objects that this action will not lie, but that the remedy, if any, is by enforcing the lien. This objection lias been substantially answered under the preceding head. It is only necessary to add, that if the views there expressed are correct, it follows that the plaintiff is entitled to a remedy at law to enforce its claim. As the statute gives no such remedy, any appropriate remedy may be used for that purpose. This action is assumpsit and debt joined. We have no doubt that the plaintiff is entitled to recover in one or the other of these forms of action, and perhaps in either at its election. It being for a sum certain, and the claim originating in a statute which confers upon the plaintiff the right to receive, and imposes upon the defendant the obligation to pay, said sum, it is clear that the count in debt can be sustained. We advise judgment for the plaintiff.
In this opinion the other judges concurred; except Butler, O. J., who dissented.