California & Nevada Railroad v. Mecartney

The Court. This is a suit to quiet plaintiff’s title to a strip of land described as “ that certain strip of land twelve and one-half (12£) miles in length, situate in the county of Contra Costa, state of California, commencing at a point on San Pablo creek, on land owned by H. Brockhurst, in said county, and running thence in a westerly and southerly direction to the Alameda county line in said state, together with a railroad track thereon and all the substructures and superstructures supporting the same, and the appurtenances, which, during all said times, were, and now are, used by said plaintiff to [620] pass, repass, and occupy, witli trains, engines, and cars belonging to it.” The defendant pleads title acquired through a tax sale for taxes due for the fiscal year ending June 30, 1891. The plaintiff recovered judgment, and defendant appeals therefrom and from an order denying a new trial. Respondent, to sustain the judgment, points out a great many alleged defects in defendant’s pleading and in the evidence. We do not think it necessary to notice all of them, for, if any one is well founded, the judgment must be affirmed. 1. We think the notice of redemption, as it is called, is insufficient. It is provided (Pol. Code, sec. 3780) that a redemption may be made within twelve months from the date of the purchase, or at any time prior to the filing of certain affidavits and the application for a deed. “ Or ” may be read “ and,” for it is evident that all the recited events must happen before the owner will be deprived of his right to redeem. The mode of applying for a deed is prescribed in section 3785 of the Political Code. It provides that thirty days before the time for redemption expires, or thirty days before he applies for a deed, the purchaser must serve upon the owner a notice, in which, among other things, must be stated “the time when the right of redemption will expire, or when the purchaser will apply for a deed.” The notice served by the defendant was, on this point, “ that the time állowed by law for the redemption of said property will expire on the fourteenth day of May, A. d. 1892, and, unless redeemed sooner, the undersigned will hereafter apply to said tax" collector for a deed.” If by the phrase “ time allowed by law for redemption” is meant when the twelve months from the purchase will expire, the time was incorrectly stated. If it is intended to indicate that the time for redemption will then be ended by the application for a deed the state [621] ment is insufficient, because the notice immediately proceeds to state that the purchaser will at some indefinite time (hereafter) apply for a deed. Had the notice omitted to state any thing in regard to the application for a deed it is possible that the notice that the time for redemption would expire on the day named might be held to mean that the purchaser would then put an end to the right by applying for a deed, for the purchaser could not put an end to the period allowed for redemption except by the performance of the acts designated, one of which is the application for a deed. But a notice that at an indefinite time the purchaser will apply for a deed fixes no time when the right to redeem will expire. 2. If the foregoing were the only fatal objection to defendant’s title it would still leave him with a lien, and he could still give the required notice, and demand his deed. But the decree is to the effect that defendant has no rights in the premises. It becomes necessary, therefore, to inquire whether the assessment is valid. The description in the assessment is: “The land claimed and occupied by the California and Nevada Railroad Company as a right of way for the California and Nevada railroad, together with the track and all substructures and superstructures which support the same, comprising twelve and one-half miles of railroad, commencing at a point on San Pablo creek, on land owned by Henry Brockhurst, and running thence in a westerly and southerly direction to the Alameda county line, valued and assessed at six thousand dollars per mile. Value, seventy-five thousand dollars; total value, seventy-six thousand dollars; total tax, nine hundred and seventy-five dollars.” Although land is here mentioned, still it is said that it, with the track and all substructures and superstructures “ comprises twelve and one-half miles of railroad,” which is assessed at six thousand dollars per mile. There is no separate assessment of land and improvements, and it is contended that therefore the assessment is void. It is provided in the constitution, section 2, [622] article XIII: “ Land and the improvements thereon shall be separately assessed.” In section 3617 of the Political Code, which is found in title IX of the code in regard to revenue, are some definitions of terms as used in the code. The second subdivision reads: “Second. The term ‘real estate’ includes: 1. The possession of, claim to, and ownership of, or right to the possession of land,” etc. If the question were a new one there might be some plausibility in claiming that the right of way acquired by a railroad company is not real estate, but a mere easement, leaving the title, and even the right of possession, subject to the easement in the landowner. That position would not help the appellant here. The right of way was valued as land, and as part of the railroad. If the land did not belong to the plaintiff it was improperly assessed to it; if it did, or if the interest of the corporation in it is properly designated land, then, by virtue of the constitutional provision and the code, both the roadway and the improvements (the roadbed, track, etc.) should have been assessed separately. (Huntington v. Central Pac. R. R. Co., 2 Saw. 503, and cases there cited.) Counsel for appellant cites several provisions from the code in regard to the assessment of railroads by the state board of equalization, which seem to indicate that the roadway, roadbed, and rolling-stock are to be valued together. This matter is fully explained in San Francisco etc. R. R. Co. v. State Board, 60 Cal. 12. The constitution provides a mode in which the state board shall fix its valuations. This must be construed, so far as it differs from the general rule, as an authorized exception. In the above case reference is made to the code • provisions requiring the county assessor to specify and separately assess different species of property, and it is said: “It thus appears that while, as to assessments made by the assessor, the kinds are to be separately stated, the assessment by the state board of the franchise, roadbed, etc., is entered in one column and as a single item.” [623] There may be nothing in the point that the right of way cannot pass, because the franchise is not sold with the right of way. If the statute authorizes such sale possibly there is nothing more to be said. But it is somewhat difficult to determine what a purchaser would get. The right of way is in the nature of an easement, and is acquired only for the purpose of the railroad. When the road is abandoned or removed from the strip of land over which the railroad has a right of way the land is discharged of the burden. The right of way no longer exists. The plaintiff may be in no condition, however, to raise this point. The judgment and order are affirmed.