Allegheny City v. West. Penna. R.

Citations

• 138 Pa. 375
• 21 A. 763
• 1891 Pa. LEXIS 1118

Syllabus

<p>[To be reported.]</p> <p>1. A strip of ground, the whole of which is occupied by railroad tracks and which forms part of the roadbed of a railroad company, is not liable to a municipal claim for the improvement of a street running parallel with and adjoining such roadbed, whether the railroad company owns the ground in fee or only an easement thereon.*</p> <p>(a) The act of April 1, 1870, P. L. 751, directing the assessment of the cost of street improvements, in Allegheny city, against the owners of any interest in abutting properties, and that when the owner is a public corporation, and the property cannot for any reason in law be sold upon a municipal lien, the lien shall be prosecuted to judgment and collected' by a writ of fieri facias:</p> <p>2. The provisions of the act, even if they are broad enough and were intended to cover all railroad property, do not affect the above rule, especially in a case where the railroad is from twelve to fifteen feet lower than the bed of the street, as assessments for such improvements can be sustained only when the property is capable of benefit therefrom.</p> <p>3. While, as a general rule, the property owner cannot defend upon the ground that his property is not benefited by a street improvement, this rule has no application to the roadbed of a railroarLcompany, that being the one species of property which theTaw presumes incapable of being benefited: West. Penna. R. Co. v. Allegheny, 2 W. N. 229, distinguished.</p> <p>4. In the absence of any special benefit from such an improvement, and in a case where the courts can declare, as a matter of law, that no such benefit can arise, the legislature is powerless to impose upon the property the burden of special assessments for the cost of the improvement this would not be a tax, but practical confiscation.</p>