Town of Lenoir v. Carolina & Northwestern Railway Co.

Bkogdbn, J. It appears from the record in this cause that the defendant maintained its tracks in a public street known as West or West Main Street in the town of Lenoir. Prior to 20 August, 1917, the town of Lenoir was desirous of making • permanent improvements to said street and as an incident thereto induced the defendant to move its tracks to the north of the then location thereof in said street. On 20 August, 1917, the board of town commissioners of said town of Lenoir passed a resolution directing “that the mayor appoint a jury for the purpose of condemning sufficient land on the north side of West and Harper Avenue for the purpose of widening said street according to survey.” The condemnation was perfected and an additional strip of land acquired. Thereupon the defendant at its own expense shifted its tracks f jom the location then occupied to the north and upon this condemned area. The purpose of the condemnation, as set out in the resolution was for widening the street. As we interpret the record and plats the additional strip condemned resulted merely in widening the street and the incorporation of the condemned area as a part of the street as widened. So that when the defendant shifted its tracks it simply moved its tracks from one location in the street to another location in the same street in order that that part of the street formerly occupied by its tracks before removal could be paved. Thereupon the plaintiff town paved that part of the street formerly occupied by the tracks of defendant. When the paving was completed it assessed against the defendant as abutting owner the cost of 333 feet of paving, amounting to $854.08. So far as the record discloses the defendant neither owns nor has an easement in any land outside of the street in which its tracks are laid. The sole question, therefore, is whether or not the defendant is an abutting owner by virtue of the fact that its tracks are laid in a public street. In Anderson v. Albemarle, 182 N. C., 434, this Court held that the words “Abutting on the improvement” mean “abutting on the street that is improved,” and further, “by the term abutting property is meant that between which and the improvement there is no intervening land.” Obviously this language means that abutting property cannot exist in [712] tbe street itself but, in tbe nature of things, must be property outside of tbe street itself, touching or bordering upon tbe street or improvement. Tbe case of South Park Comrs. v. Chicago, Burlington and Quincy R. R. Co., 107 Ill., 105, is directly in point. In that case tbe assessment roll described tbe property of tbe defendant as “tbe right of way of occupancy, franchises, property and interests of Chicago, Burlington and Quincy Railroad Company, in Michigan Avenue, in tbe city of Chicago,” etc. Upon an assessment made upon this easement upon tbe theory that this property “was contiguous property abutting upon such avenue” the Court said: “And as a street cannot, in tbe nature of things, abut on itself, and as mere intangible rights or privileges, for tbe same reason, are incapable of abutting on anything, it is clear tbe assessment was unauthorized.” See, also, Okla. R. R. Co. v. Severns Paving Co., 170 Pac., 216, 10 A. L. R., 157, in which many authorities are assembled. The resolution authorizing the assessment contained no requirement that the defendant should improve the land occupied by its tracks as specified by C. S., 2708, subsec. 3. Holding, as we do, that the defendant was not an abutting owner upon the facts found by the trial court, the ruling of the trial judge was correct, and the judgment is affirmed. The plaintiff: excepted because the trial judge did not allow attorney’s fees in accordance with chapter 42, Private Laws of 192g. This act permits the judge to allow a reasonable attorney fee for collecting a valid assessment. The act is not mandatory and the power to allow such fee is lodged in the discretion of the court. Affirmed.