
    City of Superior, Respondent, vs. Lake Superior Terminal & Transfer Railway Company, Appellant.
    
      January 28
    
    February 18, 1913.
    
    
      Municipal corporations: Improvements: Special assessments: Validity: Railroad property: Benefits: “Adjacent” property: Intervening alley: Action to recover assessments: Sale for taxes is not payment.
    
    1. The statute (sec. 1210ft, Stats.) which makes railroad property subject to assessment for local improvements to the same extent as private property is a valid exercise of legislative power.
    2. In considering: the question of the benefits resulting from such improvements, railroad property is to be considered, not with-reference to its present use', but with reference to its adaptability for other and general uses in the future.
    3. When it is provided by law that assessments of benefits for local improvements in a city may be levied against abutting or adjacent real estate, the word “adjacent” signifies in this connection lying near to but not actually touching the improvement, being separated therefrom by an intervening parcel or strip.
    4. A parcel of land cannot be said to be “adjacent,” within the meaning of such a law, when not only a separate parcel of land but a public way intervenes between it and the improvement. So held where, between the land assessed and the improved street, there were lots 120 feet deep and also a twenty-foot alley parallel with said street and about one third of the way back from it to the other side of the block.
    5. Where land is so located that the board of public works had no power or jurisdiction to levy an assessment upon it, such assessment will be held void in an action by the city to collect it.
    6. A railroad right of way may properly be assessed for a sidewalk laid along its street frontage.
    7. In an action by a city to recover special assessments on land it is immaterial that the land has been returned delinquent and sold for the taxes and a certificate issued to the county, since these facts do not constitute payment of the taxes.
    Appeal from a judgment of tbe circuit court for Douglas county: A. J. ViNJE, Circuit Judge.
    
      Reversed.
    
    Tbis is an action brought by tbe city of Superior under sec. 1210Z, Stats., to recover of tbe defendant certain special assessments levied against a part of tbe defendant’s right of way for street paving and construction of sidewalks. Tbe defendant owns in fee a fif-ty-foot strip of land running due east and west through the south half of certain blocks in the city of Superior upon which it operates its engines and cars, and this is the strip against which the special assessments in question were levied. The following drawing of one of the blocks will give a correct idea of the situation:
    
      
    
    The railroad property, which consists of the shaded strip upon the plat, was assessed $355.37 as benefits for the construction of a pavement upon Third street and was also assessed $62.20 for tbe construction of a cement sidewalk on the east side of John avenue across the strip. Judgment was rendered by the trial court for the plaintiff for both amounts, and the defendant appeals.
    
      J. A. Murphy, for the appellant.
    Eor the respondent there was a brief by H. V. Qard and T. L. M’Intosh, and oral argument by Mr. M’Intosh.
    
   WiNslow, 0. J.

On the general subject of special assessments against railroad property for local improvements, three propositions must now be considered as settled and not open for debate:

First, that the statute which makes railroad property subject to assessment for local improvements to the same extent as private property is a valid exercise of legislative power (Chicago, M. & St. P. R. Co. v. Janesville, 137 Wis. 7, 118 N. W. 182); second, that in considering the question of the benefits resulting from such improvements, railroad property is to be considered, not with reference to its present use, but with reference to its adaptability for other and general uses in the future (Chicago, M. & St. P. R. Co. v. Milwaukee, 148 Wis. 39, 133 N. W. 1120); and third, that when it is provided by law, as in the case of the city of Superior, that assessments of benefits for local improvements may be levied against abutting or adjacent real estate, the word “adjacent” signifies in this connection lying near to but not actually touching the improvement, being separated therefrom by an intervening parcel or strip (Hennessy v. Douglas Co. 99 Wis. 129, 136, 74 N. W. 983; Northern Pacific R. Co. v. Douglas Co. 145 Wis. 288, 130 N. W. 246).

It is said by counsel for the city that since the decision of the Hennessy Case, supra, it has been the practice in Sur perior to consider all property which is no further back from the street than the middle of the block as adjacent to the street, even though it does not actually touch the street, and he appeals to the court to place its approval on that rule. It seems, by reference to the case named, that such was the rule followed in making the assessments which were sustained by the judgment in that case. It is to be noted, however, that the question as to how far the assessments might lawfully extend was not presented for decision in that case, but simply the question whether there could be adjacent property which did not abut. The action of the board of public works in determining the extent of the assessment district within the field of property which could properly be called adjacent was held to be conclusive, subject only to alteration on direct appeal from their determination, 'and as that action was an action in equity to set aside the assessments as illegal the only propositions really decided on this branch of the case were that assessments could be properly levied on adjacent property not actually touching the improvement, and that the property included in that case was not beyond the limit of adjacency.

In all ordinary cases the center line of the block would seem to be a fairly good place to locate the line of adjacency, inasmuch as nearly all blocks have streets subject to improvement on both sides. However, it is not to be understood that we are laying down any rule one way or the other upon the question. Special circumstances may well make very material difference in the conclusion as to what parcels are properly to be considered as adjacent.

Acting upon the theory that any parcel of land which extends no further back from the street than the center line of the block may properly be held to be adjacent to the street in front, counsel for the city point to the fact that the railroad land in question is within that half of the block towards Third street and hence was properly assessed as adjacent land.

The difficulty is that the block in question is not an ordinary block without an alley or with an alley halfway back from the street, but a block with an alley about one third of tbe way back. Were tbis alley in tbe center, it seems to ns clear tbat it would necessarily mark tbe limit of tbe area of adjacency; first, because a parcel of land cannot be said to be adjacent, witbin tbe meaning already approved, when not only a separate parcel of land but a public way intervenes between it and tbe improvement; second, because eacb balf of tbe block should in justice bear tbe burden of improving its own frontage on its own street; third, because of tbe fact, wbicb is scarcely less important, namely, tbat tbis construction provides a rule of certainty in tbe application of tbe assessment statute and removes all doubt as to tbe limits of tbe power of assessment in tbat direction. Tbe fact tbat tbe alley in tbe present case is not in tbe center of tbe block, but only about one third of tbe distance from tbe improved sheet to tbe other side of tbe block, does not impress us as a fact of sufficient importance to make an exception to tbe rule. It is still tbe fact tbat there is between tbe land assessed and tbe improved street full business lots 120 feet deep, as well as an alley or public way of twenty feet in width wbicb it may be called on at any time to assist in paving. We bold tbat such property is not included in tbe term “adjacent.” If not adjacent, it was not witbin tbe power or jurisdiction of tbe board of public works to levy an assessment upon it, and hence such assessment must be held void even in tbis action.

As to tbe sidewalk assessment, no reason is perceived why it should not be held valid. Tbe sidewalk runs north on tbe east side of John avenue, and actually touches tbat part of tbe right of way included in one of tbe blocks. There is no question of adjacency here. Tbe parcel used for a right of way in tbis block is taxed to build a sidewalk along its street frontage, just as any parcel of land is taxed for a like purpose.

Tbe fact tbat tbe land has been returned delinquent and sold for taxes by tbe county treasurer and a certificate issued to tbe county is of no consequence. These facts do not constitute payment of the taxes. Iron River v. Bayfield Co. 106 Wis. 587, 82 N. W. 559.

By the Court. — Judgment reversed with costs, and action remanded with directions to enter judgment in accordance with the views expressed in this opinion.

ViNJE, J., took no part.  