Severson, Robert K.

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UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 35 Number 3 Article 12 1959 Special Assessments - Railroads-Right of Way Assessment Liability Depends on Present or Future Benefits Robert K. Severson Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Severson, Robert K. (1959) "Special Assessments - Railroads-Right of Way Assessment Liability Depends on Present or Future Benefits," North Dakota Law Review: Vol. 35 : No. 3 , Article 12. Available at: https://commons.und.edu/ndlr/vol35/iss3/12 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. 1959] RECENT CASEStaining the intent of the parties, arrived at from a consideration of the con-veying instrument's terms and attending circumstances.' 5  However, when,as in the instant case, the parties use clear language such as: "... one-eighthof all the oil and gas which may be produced ... ," it is submitted that suchlanguage should be held to result in the creation of a royalty interest. Tohold otherwise is to ignore the usual operative effect given such language bythe courts.DAVID C. JOHNSON.SPECIAL ASSESSMENTS - RAILROADS-RIGHT OF WAY ASSESSMENT LIABILITYDEPENDS ON PRESENT oR FUrURE BENEFITS. - Planitiff railrqad's main, lineright of way ran adjacent and parallel to two portions of defendant's citystreet that was repaved. Plaintiff was assessed more than 50% of the totalamount in the special assessment repaving district. The Michigan SupremeCourt held, five justices dissenting, that the railroad failed to show that nobenefits inured to the right of way at the present time or in the foreseeablefuture and was therefore liable for the paving assessment. New York R.R. v.Detroit, 93 N.W.2d 481 (Mich. 1959).Most courts hold that property of a railroad may be made liable by assess-ment for local improvements.' The peculiar character of a railroad right ofway gives rise to special problems in applying special assessments against it.2There is conflict of authority as to whether a special assessment may be en-forced against a railroad right of way. 3Many courts hold that a railroad right of way is liable for assessment forlocal improvements only if it can be said to be benefited by the improve-ments. 4 This does not violate the Fourteenth Amendment.' But if the costof paving is without any compensating advantage and if the statute requiresas a basis for its operation the existence of benefits, then the assessmentamounts to confiscation.6 An assessment by proper authority being prima facievalid, the burden is on the railroad to show that it is not benefited.7 There isa split of authority as to whether the court may say as a matter of law that aright of way does not receive a benefit.' Some states hold that a specialassessment should be upon the basis of benefits to the property assessed fromthe improvements and not upon the number of square feet in the property, or15. Dabney-Johnson Oil Corp. v. Walden, 4 Cal.2d 637, 52 P.2d 237 (1935); Hickeyv. Dirks, 156 Kan. 326, 133 P.2d 107 (1943); Pure Oil Co. v. Kindall, 116 Ohio St.188, 156 N.E. 119 (1927).1. E.g., Carolina & N.W. BR. v. Clover, 46 F.2d 395 (4th Cir. 1931) (Benefit notnecessary); Cowart v. Union Paving Co., 216 Cal. 375, 14 P.2d 764 (1932).2. Cf. Northern Pac. R.R. v. Seattle, 46 Wash. 674, 91. Pac. 244 (1907).3. See, Town of Clayton v. Colorado & S. By., 51 F.2d 977 (10th Cir. 1931) (Solelya question of state policy).4. See Northern Pac. R.R. v. Grand Forks, 73 N.W.2d 348, (N.D. 1955); Thomasv. Kansas City Southern By., 261 U.S. 481 (1923).5. Northern Pac. R.R. v. Richland County, 28 N.D. 172, 148 N.W. 545 (1914);Louisville & N. By. v. Barber Asphalt Paving Co., 197 U.S. 430 (1905).6. See Georgia R. & Electric Co. v. City of Decatur, 295 U.S. 165 (1934).7. Chicago, R. I. & P. By. v. Wright County Drainage Dist., 175 Iowa 417, 154N.W. 888 (1916).8. See, e.g., Long Island By. v. Hylan, 940 N.Y. 199, 148 N.E. 189 (1925) (nobenefit declared as a matter of law); Contra, Grand Rapids v. Grand Trunk By. System,214 Mich. 1, 182 N.W. 424 (1921) (Matter for the jury).NORTH DAKOTA LAW REVIEWupon the street frontage9 Future benefits that will sustain an "assessmentmay consist of gains from increases in traffic reasonably expected to resultfrom the improvement, but they may not be based upon mere speculation orconjecture.10 One state has expressly provided by statute that the right ofway of a railroad shall be subject to special assessment for street improve-ments."In a great number of cases the liability of a railroad right of way for assess-ments has been denied on the ground that no benefit to the right of way hasresulted, or will result from the improvement, although it is evident that hadthe improvement been beneficial, such property would have been held liable.12In some jurisdictions the power to assess a railroad right of way is denied onthe ground that it is land appropriated to a public use.' 3 Railroad right ofways are exempt from street improvement assessments only where use thereofis solely and permanently for railroad purposes.' 4 The system and policy ofeach state enter largely into the question and give to it a local character.15North Dakota would apparently follow the dissenting opinion. The lawseems to be fairly well settled in North Dakota that a right of way is notsubject to special assessments for the reason that no future benefits can bederived to a right of way committed to a definite use.'6ROBERT K. SEVERSON.9. See Johnston City v. Chicago & E. I. By., 289 Ill. 407, 124 N.E. 568 (1919);Northern Pac. Ry. v. Grand Forks, 73 N.W.2d 348 (N.D. 1955) (In North Dakotaspecial assessments must be apportioned according to benefits. The foot frontage methodcan be used only where benefits conferred upon the assessed property are equal anduniform.).10. See Kansas City Southern By. v. Road Improv. Dist., 266 U.S. 379 (1924).11. Iowa Code Annot. § 391.40 (1949).12. See, e. g., Long Island By. v. Hylan, 206 N.Y. Supp. 239 (1924); Minneapolis &St. L. By. v. Lindquist, 119 Iowa 144, 93 N.W. 103 (1903).13. See, e.g., Boston v. Boston & A. R.R., 170 Mass. 95, 49 N.E. 95 (1898).14. See City of Barre v. Barre & Chelsa By., 97 Vt. 398, 123 Ati. 427 (1924).15. Town of Clayton v. Colorado & S. By., 51 F.2d 977 (10th Cir. 1931); See Chi-cago, M. & St. P. By. v. Milwaukee, 89 Wis. 506, 62 N.W. 417 (1895).16. See Northern Pac. By. v. Grand Forks, 73 N.W.2d 348, (N.D. 1955).[VOL. 35

Special Assessments - Railroads-Right of Way Assessment Liability Depends on Present or Future Benefits

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Special Assessments - Railroads-Right of Way Assessment Liability Depends on Present or Future Benefits

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