
    PUBLIC SERVICE RAILWAY COMPANY, PROSECUTOR, v. THE TOWN OF KEARNEY, IN THE COUNTY OF HUDSON, RESPONDENT.
    Argued January 18, 1928
    Decided February 1, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutor, Frank Bergen, William, H. Speer and Wendell J. Wright.
    
    For the respondent, John H. Cooper.
    
   Per Curiam.

The prosecutor and its predecessors having for a number of years operated a street railway over portions of Midland avenue and Elm street, in Kearney, suspended such operation some time in 1926 and by agreement with the governing body of that municipality removed the poles and overhead electrical construction, reserving the right of replacing same and resuming operation of its railway at any time in the future that it should so determine.

Subsequent to suspending the operation of such street railway the governing body of Kearney proceeded to repave Midland avenue and Elm street for the space therein occupied by the tracks of prosecutor and for a distance of eighteen inches outside of the outer rails of such tracks and through its board of assessors proceeded to assess a portion, of this cost against the prosecutor. The assessment for Midland avenue being $13,627.87 and that for Elm street $4,491.45. No other assessments were levied; the balance of the cost in each case being placed upon the town at large.

These assessments were reported to the town council by the board of assessors and confirmed.

Under the two writs, bringing these assessments before us for review, we are asked to vacate and set them aside, and this we must do because the prosecutor has no lands subject to assessment for benefits but possesses a mere right of use of the highways in question for the operation of its street railway, under legislative sanction. There was no benefit accruing to the prosecutor as a result of such repaving.

Furthermore, the legislature has by chapter 129 (Pamph. L. 1927, p. 243) fixed the obligation of street railway and traction companies in respect to matters of this character and thereby has established a method to he pursued in respect thereto.

The assessments under review are set aside and vacated, with costs.  