Purifoy v. Lamar , 112 Ala. 123 ( 1895 )

HARALSON, J.

The only grounds upon which the State resists the application for mandamus are that “railroad property is not .treated or assessed at all as real estate ;” and that the statutes under which the sale was made, were “never intended to include the sale thereunder, of an operated railroad, or, as in this case, the sale to an individual, for a mere nominal sum, of a segregated portion of an operated railroad;” that such a construction is contrary to public policj^ and the true intent and. meaning of the law. The Auditor in his letter to the purchaser of the land, stated, that after full consultation with the Attorney General, he had concluded to decline to execute a deed to him for the property purchased, “on the ground that it is not land within the meaning of the statute under which it was sold.”

The Code of this State, in section 494-509, inclusive, provides a mode for assessments of taxes against railroads, telegraph, . telephone, express and sleeping car companies. It is the duty of the tax-assessors of the different counties, to assess the taxes on all other species of property in tlie State, as provided in sections 468-493, inclusive, of the Code.

The Code, section 2, sub-div. 2, defines the term “real property,” as “co-extensive with lands, tenements and hereditaments ;” and in section 450, sub-div. 1, those words are again, for the purposes of taxation, defined “to mean and include not only land, city, town and village lots, but also all things thereunto pertaining, and also all structures and other things so annexed or attached thereto, as to pass to a vendee by the conveyance of the land or lot.”

For the purposes of taxation, the rule is well settled, that the right-of-way and the road-bed of railroads, in the absence of statute regulation,' are treated as real estate, or an interest in land. — Wetty’s Law of Assessments, § 142; Hilliard’s Law of Taxation, 273-276; 1 Desty oil Taxation, 396; Cooley on Taxation, 367; The People v. Cassity, 46 N. Y. 46; The People v. Beardsley, 52 Barb. 105; The People v. The N. Y. & H. R. R. R. Co., 101 N. Y. 322; The Sangamon & M. R. Co. v. The County of Morgan, 14 Ill. 163.

In the Tenn. & Coosa R. R. Co. v. East Ala. R’y Co., 75 Ala. 516, after citing cases tending to show that the road-bed and superstructure are considered realty, it was said : “There is much reason for the opinion. The road-bed and right-of-way are as immovable as the soil itself, the superstructure is attached to the soil, and the corporation has the exclusive right to the possession ■ of it. In the Central Pacific R. R. Co. v. Benity, 5 Sawyer, the precise question we are considering was presented, and the court, Circuit Justice Sawyer participating, decided the action of ejectment would-lie. So we hold in this case.” See also Jones v. N. O. & S. R. R. Co., 70 Ala. 227; Hooper v. C. & W. R. R. Co., 78 Ala. 213.

That the track and right-of-way of a railroad is land is also recognized in the statutes providing for assessments against railroads. Section 503 provides, that when the board shall have completed the assessment of the property of any railroad company, “the Auditor shall notify the tax-assessor -of each county through which such railroad runs, of the number of miles of track in his county, and the value thereof, and the proportionate value of other property of such company assessed by the board of assessment, and taxable in his county, which, he must enter in the book of assessment, in addition to the assessment of other real estate, fixtures, machinery, &c., to be assessed as other property of like kind owned by private citizens of his county,” &c. Here, the railroad track is classed and directed to be entered as real property, with other real estate.

The case of the East Ala. R’y Co. v. Visscher, 114 U. S. 340, is the only one relied on by appellant, to show that the property which was sold in this case was not land. But the decision there, seems not to be in conflict with our decisions to which we have referred. The court say, p. 350 : “The right granted was merely a right-of-way for a railroad. * * * What it acquired -was a mere easement in the land, to enable it to discharge its function of making and maintaining a public highway ; the fee of the soil remaining in the grantor.” This easement the court held was not the subject of a levy and sale under execution. They say further : “But in the view we have taken, as before stated, of the facts of this case, it is not necessary to discuss the general question as to the right to levy an execution at law on property owned by a railroad company in fee.” However this may be, under the statute of this State, and the decisions above referred to, there can be no doubt about the question, that a railroad, especially for the purposes of taxation, is to be classed as land.

As to the second objection urged, that a sale cannot be made of a segregated portion of an operated road, as being contrary to public policy, it is sufficient to say, that we have held to the contrary in the cases referred to, (Tenn. & C. R. R. Co. v. E. Ala. R’y Co., and Hooper v. C. & W. R’y Co.), in which it was held that ejectment will lie for a part of an operated railroad. In the latter case, on this question, it was said: “We cannot see, moreover, that the public would be any more inconvenienced by an action of ejectment in this case, at law, than they would by the enforcement of the vendor’s lien by a court of chancery, which would result in a sale of the land by order of that court, and in the event of its purchase by the plaintiff or any other vendee, in the placing of such purchaser in actual possession. — 2 Story Eq. Juris., § 1231 b.”

Section 7 of the act, “To dispose of lands which have been or may hereafter be sold for taxes and bid in fol the State, and which have not been redeemed or purchased from the State,” — approved February 9, 1895, (Acts 1894-95, p. 488), — under which the sale of the land in this case was made, provides, “That it shall be the duty of the Auditor on the receipt of the returns from the probate judge, to make out, execute and return deeds to the probate judge, for delivery to the purchaser. Such deeds shall convey to the purchasers all rights, title and interest and claim of the State.” Under this act, the duties of the Auditor, so far as the execution and delivery of the deed is concerned, are purely ministerial, with reference to which he has no right of discretion, but his duty is to comply with the mandate of the statute. He cannot suggest error or mistakes or illegality in the proceedings; but, . upon the facts properly certified to him, relieved of any discretion in the matter, his duty is to proceed to make the deed, as the statute enjoined. — 19 Am. & Eng. Encyc. of Law, 456, and authorities cited; Grider v. Tally, 77 Ala. 422; Flournoy v. City of Jeffersonville, 17 Ind. 169; s. c. 79 Am. Dec. 468, and note.

A mandamus lies against the Auditor to compel the performance of a purely ministerial duty enjoined by statute. — Tenn. & C. R. R. Co. v. Moore, 36 Ala. 371; Hudmon v. Slaughter, 70 Ala. 546.

It may be proper to add, that we have confined our decision to the case as presented. We have not considered the legality or regularity of the proceedings of the board of assessment, or the other proceedings leading to the sale and purchase of the land by the appellee. Whether, when the deed is made to him of the “title and interest and claim of the State,” he has acquired such title as will enable him to sue for and recover the land in controversy, is a question not herein raised or decided.

Affirmed.