
    [No. 2361.
    Decided December 8, 1896.]
    City of New Whatcom, Respondent, v. Bellingham Bay and British Columbia Railroad Company, Appellant.
    
    STREET IMPROVEMENTS — ASSESSMENT OF RAILROAD TRACKS.
    A railroad track and right of way are liable to assessment for benefits resulting from the construction of street improvements, under Laws 1893, p. 227, secs. 1, 2, which provide that all property benefited by the improvement shall be assessed to the extent to its proportionate part of the expense.
    Appeal from Superior Court, Whatcom County.—Hon. John R. Winn, Judge.
    Affirmed.
    
      Newman & Howard, for appellant.
    
      T. E. Cade, D. W. Freeman, and Kerr & McCord, for respondent.
   Per Curiam.

The facts presented in this case are similar to those in the cases between the city and the Bellingham Bay Improvement Company, recently decided, ante p. 131 with the exception that the defendant contends that a railroad track cannot be assessed for benefits in making street improvements; and a number of authorities have been cited upon this proposition by both parties. But the statute upon which this proceeding was had provides, that all property benefited by the improvement shall be assessed to the extent of its proportionate part of the expense thereof. Laws, 1893, p. 227, §§ 1 and 2.

It is not within our province to say that a railroad track and right of way cannot be benefited under any circumstances by the construction of street improvements; and as it may have been benefited in this instance and the defendant did not appear and object to the assessment, we think the judgment should be affirmed.  