South Park Commissioners v. Chicago, Burlington & Quincy Railroad

Mr. Justice Mulkey delivered the opinion of the Court: It is apparent from the foregoing statement, the only question presented for determination is, whether “the right of way of occupancy, franchises, property and interests of” the appellee, in Michigan avenue, are, within the meaning of the acts above cited, “contiguous property abutting upon such avenue,” for no other description of property is authorized to be assessed. It does seem to us the very statement of this question furnishes its own solution. It is clear that nothing but some tangible object or thing can, with propriety, be said to abut on a street or avenue, and it is not pretended the subject of assessment in this case is anything of the-kind. If the interests or rights assessed can be said to have any corporeal or physical existence, so that they could, with any propriety of language, be said to be contiguous to or abutting upon anything, they must be represented by the avenue itself, and, as is well said by the Appellate Court, it would be a legal solecism to say the avenue was contiguous to and abutted on itself. Property, in its appropriate sense, is that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects. But the term is often used to indicate the res or subject of property rather than the property itself, and so we understand it to be used in the second section of the act of 1879, above referred to, which authorizes the park commissioners “to levy, or cause to be levied and collected, a special tax or assessment on contiguous property abutting upon such street,” etc. And as a street can not, in the nature of things,' abut on itself, and as mere intangible rights or privileges, for the same reason, are incapable of abutting on anything, it is clear the assessment was unauthorized. The authorities cited as sustaining a contrary view we do not regard as in point. There is no question but that the' legislature may lawfully provide for the taxation of property of this character, but that is not the question here. The judgment will be affirmed. Judgment affirmed.