Atlanta & C. A. L. Ry. Co. v. City of Easley , 117 S.C. 494 ( 1921 )

October 10, 1921. The opinion of the Court was delivered by This is an action seeking to restrain the City of Easley from collecting from the railway company certain assessments against abutting property for street improvements. The case was tried by Judge DeVore, who filed a decree in favor of plaintiffs' respondents, on January 10, 1920. Appellants appeal, and by exceptions, 20 in number, seek reversal.

The decree of Judge DeVore should be set out in the report of the case. The exceptions challenge the finding of his Honor in favor of the railroad's contention:

"(1) That the land occupied by North Main Street is merely a part of the railroad right of way; that, not being a part of the streets of the city, it does not come within the constitutional amendment authorizing the city council to levy an assessment for its improvement against abutting property. (2) That the right to charge part of the costs of improving a street against abutting property does not apply to the property of a railroad company, consisting of right of way, tracks, station grounds, etc. (3) That an assessment upon the basis of feet frontage and without giving the railway company an opportunity to be heard is a taking of property without due process, and unconstitutional. (4) That, at the time of the passage of the ordinance authorizing the improvement of the streets and the levy of the assessment, no statute had been passed authorizing the city council of Easley to levy such assessments, and that the statute of February 21, 1919, purporting to ratify the action of the city council was inoperative."

As to the finding of his Honor that the land occupied by North Main Street and South Main Street, respectively, is a part of the right of way of the railway company, and that, not being streets, the city council was without power to levy an assessment for their improvement.

The proof clearly shows that, since the City of Easley has been incorporated for a period over 30 years, the streets have been there used by the public at large, worked by the city, and before the railroad was built one of the streets was a public highway; while it is true the right of way of railroad was originally 100 feet, yet these streets have been used by the public for over 30 years, storehouses and other houses have been built, and a use put to the right of way now claimed by the railway, inconsistent with their claim.

The railroad has stood by, never claimed "their pound of flesh" until now, and their easement on these streets, under all the evidence in the case, unquestionably has been lost and abandoned by them under the principles laid down by this Court under the cases ofLorick v. Railway Co., 87 S.C. 74; 68 S.E., 931; SouthernRailway Co. v. Howell, 89 S.C. 395; 71 S.E., 972; Ann. Cas. 1913A, 1070; Railway Co. v. ManufacturingCo., 93 S.C. 397; 76 S.E., 1091. The evidence shows that that portion used by the City of Easley and the public at large has been abandoned and lost by estoppel on the part of railroad, and that the easement acquired to these streets by the public at large is superior to the easement of the railroad. That part which was formerly a highway being there first, the railroad never did acquire an easement in it, other than what was necessary for its roadbed. Code Laws 1912, § 3300. The evidence does not warrant any other inference than that the City of Easley and the public at large have acquired by adverse possession for a statutory period and longer a right that defeats the title of the railroad company to these streets under their original claim of the easement. Matthews v. Railroad, 67 S.C. 506;46 S.E., 335; 65 L.R.A., 286.

The evidence submitted in this case shows that for over 40 years the streets in controversy have been recognized and used in the town and by the public generally, and that the railroad company during all of that time has not questioned such use; has not complained or asserted its rights. During all of that time the public in general have uninterruptedly used these streets for the purpose of travel, continuous, uninterrupted, adverse, notorious, during all that time worked and kept in repair by the proper authorities. During all the time, 40 years, the streets have been used by the public generally, and the railroad has had knowledge of such use and acquiesced therein, has stood by and allowed storehouses and other buildings erected abutting these streets, and the business of the town has been built up, it is fair to assume, on the assumption that the streets were dedicated to the use of the public. To affirm his Honor's decree would be destructive of the property rights of individuals, and destructive of the rights of the public. The claim of railroads to these streets comes too late. Southern Railway Co. v. Board of Commissioners of Union,S.C., 246 Fed., 386; 158 C.C.A., 447.

As to the right to charge part of the costs of improving a street, it applies to abutting property of a railroad company used for its track, station, grounds, etc. The amendment to the Constitution, Section 18, Art. 10, declares the General Assembly may authorize the City of Easley to levy assessment upon abutting property holders to pay for streets immediately abutting such property, etc., provided certain conditions are complied with. The amendment authorized the assessment against abutting property. The railroad property occupied by its tracks and stations does abut upon both streets. The railroad contends that it does not come within the constitutional amendment, because of the use to which it is put. This position is untenable. The railroad is entitled to no immunity other than any other owner of property abutting the streets. It does not make any difference as to what use the property is put; they are owners and users of the property if it abuts the streets, and there is nothing in the constitutional amendment making the exemption as to them.

The public has a right to a street to get to the stations of the railroad, and it would be unjust and unfair to make other abutting owners of property pay, and exempt the railroad. The railroad is not exempt from this assessment.Heman Construction Co. v. Wabash Railway Co.,206 Mo., 172; 104 S.W. 67; 12 L.R.A. (N.S.) 112, and authorities therein cited; Northern Pacific Railroad Co. v. Seattle,46 Wn., 674; 91 Pac., 244; 12 L.R.A. (N.S.) 121; 123 Am. St. Rep., 955. In L. and N.R.R. v. Barber AsphaltCo., 197 U.S. 430, 435; 25 Sup. Ct., 466;49 L.Ed., 819, it was held that an assessment for local improvements levied against property used for railroad purposes was valid. The Court said:

"That, apart from specific use to which this land is devoted, land in a good sized city generally will get benefit from having the streets about it paved, and that this benefit generally will be more than the cost, are propositions which, as we already have implied, the Legislature is warranted in adopting."

The Court further said:

"That the Legislature is warranted in going one step further and saying that on the question of benefit or no benefit the land shall be considered in its general relations and apart from its particular use."

In Branson v. Bush, 251 U.S. 182, 189;40 Sup. Ct., 113, 116 (64 L.Ed. 215), the Court on this question says:

"To this must be added the obvious fact that anything that develops the territory which the railroad serves must necessarily be of benefit to it, and that no agency for such development equals that of good roads."

The railroad here transports passengers, freight, and commodities; the public travel to get to the station, they haul freight from the station; and it is now well known that good roads and goods streets are a great factor in human happiness, as well as a great benefit to the territory in which they are, and, unquestionably, if these streets are good, facilities for transportation will be good, and the business of the railroad will be benefited.

As to whether an assessment upon the basis of feet frontage without giving the railroad company an opportunity to be heard is a taking of property without due process of law, and unconstitutional: This must be answered in the negative under the authority ofTonawanda v. Lyon, 181 U.S. 389; 21 Sup. Ct., 609;45 L.Ed., 908; Wagner v. Baltimore, 239 U.S. 217;36 Sup. Ct., 66; 60 L.Ed., 230; Hancock v. City of Muscogee,250 U.S. 454; 39 Sup. Ct., 528; 63 L.Ed., 1081; Bransonv. Bush, 251 U.S. 182; 40 Sup. Ct., 113; 64 L.Ed., 215

As to plaintiff's claim that at the time of the passage of the ordinance authorizing the improvement and the levy of assessment, no statute had been passed authorizing the city council of Easley to levy such assessment, and that the statute of February 21, 1919, purporting to ratify the action of the city council, was inoperative. A sufficient answer to this is that, even if at the time the city council passed the ordinance there was no legislative authority for this action, yet this was cured by the Act of Legislature of February 21, 1919, wherein the Legislature ratified and confirmed the action of city council, declaring that —

"Such assessments so levied by said city council of * * * Easley are hereby declared of full force and effect and valid liens against the property assessed, bearing interest, as provided therein, from the date of levy." Acts 1919, p. 585.

The Legislature validated and sanctioned an act which it might have originally authorized. The defect in the ordinance levying the assessment for want of prior legislative sanction was cured. Duke v. County of Williamsburg,21 S.C. 414; Hodge v. School District, 80 S.C. 518;61 S.E., 1009; Dove v. Kirkland, 92 S.C. 313;75 S.E., 503.

The exceptions are sustained and judgment reversed.

MR. JUSTICE COTHRAN disqualified.