South Park Commissioners v. Chicago, Burlington & Quincy Railroad
South Park Commissioners v. Chicago, Burlington & Quincy Railroad
Opinion of the Court
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.
Reference
- Full Case Name
- The South Park Commissioners v. The Chicago, Burlington and Quincy Railroad Company
- Cited By
- 14 cases
- Status
- Published
- Syllabus
- 1. Special assessments under the Park act—only upon abutting property—not upon right of way over the street proposed to be improved. Section 2, of the act of' 1879, relating to special assessments or taxes by the park commissioners, etc., for the improvement of public streets leading to parks, authorizes such assessments or special taxes only upon contiguous property abutting upon such streets or avenues. A street or avenue ean not abut upon itself, nor can a mere right of way of a railway company over such street be included in that act as property liable to special assessment for improving such street. 2. It is clear that nothing but tangible property can be said to abut on a street or avenue. Mere intangible rights or privileges can not abut on anything, and hence a special assessment upon the same is not authorized by that act. There is, however, no question but that the legislature may lawfully provide for the taxation of such property. 3. In this case a railway company had a mere right of way over and upon Michigan avenue, in the city of Chicago, which was a public street leading to one of the parks in that city. The park commissioners, for the purpose of improving such avenue, caused special assessments to be made upon the lots, blocks, etc., abutting upon such improvement, in which was included “the right of way of occupancy, franchises, property and interests of” such railway company. This assessment was confirmed, and the company appealed to the Appellate Court, which reversed the judgment as to the com-' pany: Held, that the judgment of the Appellate Court was proper, and that such assessment was unauthorized by law.