Atchison, Topeka & Santa Fe Railway Co. v. City of Cherryvale

Citations

• 87 Kan. 57
• 123 P. 874
• 1912 Kan. LEXIS 87

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Paving Street on Railroad Right of Way. A city of the second class caused a street, which is parallel to the railway tracks and includes a-strip of the right of way, to be paved. The strip has been used as a part of the street for over twenty years without objection by the railway company, and has not hitherto been necessary for right-of-way purposes. In a former action is was held that the city should not be enjoined from paving -such a strip as a part of the street then being improved, but that such improvement should not give to the city or public any title to the land, or any interest that could ripen into a title by such user, or that would interfere with the use of the right of way. (Railway Co. v. O’Leary, 79 Kan. 664, 100 Pac. 628.) The city now seeks to charge the cost of paving such strip, together with other land used with it as a street, against the adjoining property, including the property of the railway company. It is held: (1) That there is no authority to make special assessments ■ upon the property of the railway company to pave this part . of its right of way; (2) that the railway company may maintain an action to enjoin the collection of the tax assessed therefor; (8) that a tender of the amount of the legal assessments which may be paid in annual installments was-not required before commencing this action; and (4) that the decision in the former action is not an adjudication of the validity of the assessment in question.</p>