City of Erie v. A Piece of Land Fronting on State Street & Lake Shore & Michigan Southern Railway Co. ( 1896 )

Per Curiam,

The affidavit of defense in this case avers that the piece of ground against which the assessment was made and lien filed, was all used and occupied for railroad purposes, and constitutes the roadbed and necessary right of way of the railroad company, and it further describes minutely the various tracks which are located thereon and their uses and purposes. The reason why such property, so used, is exempt from taxation as real estate, is that it is not real estate but is a part of the corporate franchise. If any part of the ground in question was used for other purposes than as the bed of a railroad, that portion would be liable to taxation. Bnt as the affidavit of defense alleges that the whole of the lot is so used it is not the subject of taxation or assessment if that averment is sustained. The defendant is therefore entitled to be heard as to the facts alleged in the affidavit and the case must go to a jury. Appeal dismissed without prejudice.