This action was brought by the appellees against the appellant to declare a lien and enforce the collection of an assessment for the improvement of a street within the incorporated town of Dunkirk. The improvement was made in pursuance of a resolution and an ordinance adopted by the board of trustees.
The north side of the street improved for its entire length, abuts upon the south side of the appellant’s right of way. The improvement was made by grading and graveling the center of roadway its entire length, and by constructing a sidewalk along the entire south side of the street with no sidewalk on the north side next to the right of way. The contract for such improvement was let to the appellees. The work was done and the costs thereof were estimated and assessed by the running foot including both street and sidewalk and the appellant as the owner of the right of way was charged with one-half, thereof.
In the circuit court there was a trial and finding in favor of the appellees in the sum of $1,460.00, and the same decreed to be a lien upon the right of way; and the appellant was ordered and directed to pay the same within ninety days. The appellant insists that the judgment rendered is erroneous because the stat*264ute under which, the proceedings were had does not contemplate that the right of way of a railroad should be assessed to make such improvements; that such assessments can only be upheld upon the theory that the land receives a benefit equal to the assessment; that in its very nature the right of way abutting can not receive a specific benefit, and that without such benefit there is no constitutional warrant to seek payment elsewhere, for it would be taking property without compensation.
There are authorities which support appellant’s • contention. City of Philadelphia v. Philadelphia, etc., R. R. Co., 33 Pa. St. 41; The Junction R. R. Co. v. City of Philadelphia, 88 Pa. St. 428; Detroit, etc., R. W. Co. v. City of Grand Rapids, 28 L. R. A. 793; 63 N. W. 1007; Chicago, etc., R. W. Co. v. City of Milwaukee, 28 L. R. A. 249, 62 N. W. 417; Allegheny City v. Western Pa. R. R. Co. 138 Pa. St. 375, 21 Atl. 763; Sweaney v. Kansas City R. W. Co., 54 Mo. App. 265.
On the other hand there are cases which seemingly support a contrary doctrine. Chicago, etc., R. W. Co. v. Chicago, 90 Ill. 573; City of Chicago v. Baer, 41 Ill. 306; Chicago, etc., R. R. Co. v. City of Moline, 41 N. E. 877; Northern, etc., R. W. Co. v. Connelly, 158 Ill. 64, 10 Ohio St. 159; Burlington, etc., R. R. Co. v. Spearmen, 11 Ia. 112; In re. North Beach, etc., R. R. Co., 32 Cal. 499.
The court knows judicially that the right of way of railway companies is frequently used for other purposes than that of simply operating their trains thereon. The right of way is frequently used for depot purposes; for track yards, and for purposes of loading and unloading freight and for storing cars and materials. When so used, a public highway affords the company ready means of ingress thereto and egress *265therefrom for the transaction of its business, and is a direct benefit to that portion abutting thereon. This court cannot say as a matter of law that the highway improvement was not a benefit to the abutting right of way. The legislature in authorizing the construction of such improvements has assumed that they will benefit the abutting property and has directed that the costs shall be .estimated according to the whole length of the street or alley or the part thereof to be improved, per running foot. Section 4290, Burns’ R. S. 1894.
Whatever the rule may be elsewhere it is settled in this State that the right of way of a railway company may be assessed for the improvement of highways. Peru, etc., R. R. Co. v. Hanna, 68 Ind. 562.
This court in the case of Lake Erie, etc., R. W. Co. v. Bowker, 9 Ind. App. 428, impliedly held that the right of way and depot lot of a railway company could be assessed for the construction of a sewer.
A public highway is' certainly of as much benefit to the right of way as a sewer.
It is further insisted that no personal judgment can be rendered in this proceeding. This contention has been decided adversely to the appellant by this court and by the Supreme Court, and it needs no further consideration now. See Louisville, etc., R. W. Co. v. State, ex rel., 8 Ind. App. 377; Lake Erie, etc., R. W. C. v. Bowker, supra; Louisville, etc., R. W. Co. v. State, 122 Ind. 443.
Several other objections are made to the proceedings of the town board. It is insisted that the board never made any order by resolution or otherwise declaring a necessity for such improvement as provided by section 4289, Burns’ R. S. 1894. The existence of such order it is claimed is essential to the jurisdiction *266of the board, and that without it the whole proceedings are void.
The statute requires the board to “declare by reso-' lution the necessity therefor.” • In this case the board passed a declaratory resolution for the proposed improvement, and gave notice thereof. This resolution in general terms described the improvement and the streets upon which it should be made, and directed that notice thereof be given by publication, and that the board of trustees would meet at a certain place and time “for the purpose of hearing any objections that may be urged to the necessity of said improvement by any owner of property along the line of said proposed improvement.” Afterwards the board duly enacted an ordinance for the making of such improvement; but this ordinance nowhere declares the necessity for such improvement.
In Barber, etc., Paving Co. v. Edgerton, 125 Ind. 455, the Supreme Court in speaking of such resolution said, “It is a mere preliminary step, looking to a public improvement, to be made or not, as the common council in its discretion may determine, fronrwhich it may recede at any time before the contract for the improvement is concluded.”
In the case before us the board had jurisdiction over the general subject of the improvement of streets by force of the statute. It acquired jurisdiction over the particular subject-matter by the declaratory resolution and the notice thereof. It acquired jurisdiction over the person of appellant by virtue of the notice. The town board was the exclusive judge of the necessity of the improvement and when it proceeded to- act and ordered the improvement made, such order necessarily involved a determination of the necessity of the work. The declaratory resolution we construe as an attempt to comply with the statute.
*267It is also insisted that the proceedings are invalid because the entire work of graveling the street and making the sidewalk on the side most distant from the railroad was let in one contract at so much per running foot, without division as between the property owners on each side of the street.
On the trial of the cause the court deducted the cost of the sidewalk from the cost of the street and charged the appellant with the costs of the street only. The course adopted by the board was irregular, but it did not invalidate the whole assessment. Lake Erie, etc., R. W. Co. v. Walters, 13 Ind. App. 275.
It has been often held that where the whole matter of making local improvements is conferred upon municipal corporations, and exclusive and original jurisdiction over the same is given them for that purpose, the proceeding will not be void if there has been an honest attempt to comply with the statutory requirements, although such attempt does not amount to a strict compliance. If the corporation has jurisdiction over the subject and the person, an irregularity that will overthrow the proceedings must be of that grave character that will prevent the execution of the judgment. Barber, etc., Paving Co. v. Edgerton, supra, p. 463, and cases cited.
The appellant also insists that the proceedings are invalid because the declaratory resolution does not state the kind, size and location of the improvement; and that the final estimate and description of the property does not comply with the requirements of the statute. There was, however, a substantial compliance with the statute in each of these particulars. These objections are but irregularities, and under the rule above announced do not invalidate the proceedings. A correct description of the property was made in the final judgment.
*268Judgment affirmed.
Ross, J., did not participate in the decision of this case.