City of Philadelphia ex rel. McCann v. North Pennsylvania Railroad

Opinion by

Rice, P. J.,

These two cases differ somewhat from Philadelphia, to the use of Kelly, v. P. & R. R. R. Co., but not so as to require different judgments. The claims were filed against two lots of ground on opposite sides of Cadwallader street, near the terminus of the defendant railroad, in the city of Philadelphia. One lot is described on the map as a freight yard, and in the affidavit of defense as “ a carload delivery yard for bulk potatoes, apples and other merchandise of like character.” There are no buildings on this lot. The other lot bas in the rear a freight depot, and is described in the affidavit of defense as “ the regular carload package freight depot of the North Pennsylvania branch of the Phila. & Reading R. R. Co.” Each of said lots is connected by several branches with the main line of the railroad oil Cadwallader street.

The learned judge below, in an able opinion,- has clearly defined and pointed out the distinctions between the different species of taxation, and has shown that property such as these belonging to a railroad company is liable to ordinary annual taxation for city purposes under the local act of April 21, 1858, P. L. 885, and possibly would be liable to such taxation under general laws. Perhaps its liability to general taxation would not be conclusive upon the question of, its liability to special assessments for local improvements. The distinction between the two species of taxation and the principle underlying it would seem to make it unsafe to say, as a general and unvarying rule, that land liable to the former kind of taxation is necessarily liable to the latter. The case of rural property is an illustration of the distinction, and, indeed, it would seem that, in any case where the court can declare as a matter of law that no special benefit to the property can arise, the legislature would be powerless to subject it to special assessment. Such were the “ roadbed ” cases: Phila. v. P. W. & B. R. R. Co., 33 Pa. 41; Junction R. R. Co. v. City, 88 Pa. 424; Allegheny City v. R. R. Co., 138 Pa. 375. But it is unnecessary to discuss this general proposition further.

In the case of Mt. Pleasant Boro. v. B. & O. R. R. Co., 138 Pa. 365, the court, after commenting on the decisions as to the liability of the roadbed of a railroad to municipal assessment for local improvements, said: “ But this reason does not apply to a railroad station where passengers assemble to take trains ; much less does it apply to ground used as a freight station or a lumber yard. ... We are of opinion that while the roadbed or right of way of a railroad company is not the subject of a claim for paving, it does not follow that a passenger or freight depot, the ground belonging to the company and used as a lumber yard or .for other purposes, may not be liable.” Accordingly it was held to be error to strike off the lien. It would be very difficult indeed to show any real difference between that kind’of property, in regard to its liability to special assessments, and those against which these claims were filed. These lots are connected with the railroad by branches, it is true, but they (the lots) are not part of the roadbed, or right of way, and do not come within the ruling which exempts it from assessment. But as the questions raised ,are discussed at length in an opinion filed herewith, in Phila. v. P. & R. R. Co., ante, p. 236, it is unnecessary to go over the same ground again. We are of opinion that the court was right in entering judgment in each case for the plaintiff.

The judgments are affirmed.