Sweaney v. Kansas City Railway Co.

Gill, J.

— This is a suit to enforce certain tax hills issued for the grading of Summit street in Kansas City. The street runs north and south, crossing the right of way of the defendant railway company nearly at right angles; and these special tax bills attempt to charge the strip of land about fifty feet wide and one hundred and fifty feet deep abutting on each side of the street, and which said strip of land composes a part of the continuous right of way for the main line of defendant’s railroad. There was a judgment below in defendant’s favor, and plaintiff appealed.

The sole question is this: Does the law authorize the enforcement of a special tax bill for a street improvement against a detached portion of a railroad right of way? The case is governed by the Kansas City charter of 1875. By that statute (Laws 1875, p. 250), the cost of grading a street is charged as a lien on the land adjoining or abutting on the highway, running back to the alley, or one hundred and fifty feet, etc., as the case may be.

The tax bills in suit were issued on the theory that the land along the line of the graded street, and used by a railroad as its right of way, is chargeable with such local improvements just as other adjacent property. This too is the position taken and so forcibly urged on us by plaintiff’s counsel. But however cogent the argument, and however reasonable and just may be the position contended for, yet under the repeated decisions of our supreme court, in cases which we deem analo *269 gous, we must hold that plaintiff cannot maintain this suit — which has for its aim and purpose the carving out, sale and conveyance of a portion only of defendant’s right of-way. Admitting the terms, “adjoining lands,” “all the property on both sides,” etc., appearing in the Kansas City charter to be sufficiently general to embrace the railroad right of way, but even then we are met with the doctrine of our adjudicated cases that a lien will not be enforced against a mere fractional part of a railroad right of way, except it be specially authorized by the legislature in language not td be doubted. Dunn v. Railroad, 24 Mo. 493 ; Abercrombie v. Ely, 60 Mo. 23 ; Schulenburg v. Railroad, 67 Mo. 442 ; Knapp v. Railroad, 74 Mo. 378 ; Skrainka v. Rohan, 18 Mo. App. 344 .

These were cases mainly for 'the enforcement of mechanics’ liens against railroad bridges, depot buildings and the like, based on the general provisions of the mechanics’ lien law allowing such liens for labor and materials furnished for all buildings, erections improvements, etc. It was admitted that the erections of the railroad might come under the terms, buildings or improvements of the mechanics’ lien law, but yet it was said to be against the policy of the law to permit the enforcement of a lien against a detached portion of a railroad. The railroad is declared public in its nature; that if a portion of its right of way was thus allowed to be taken its capacity for serving the public would be destroyed; hence it was said, “that it is better to suffer a mischief which is peculiar to one than an inconvenience which may prejudice many.” Dunn v. Railroad, 24 Mo. 495 .

It seems that the argument thus used to deny the enforcement of a mechanics’ lien against a detached portion of a railroad applies with equal force in cases of this kind. The description of the property to be *270 charged in the former case is as general' and comprehensive as in the latter. Before the act of 1873 (which for the first time provided for enforcement of liens against railroads) it was not permitted to enforce mechanics’ liens against bridges, depots and the like, for it would result in selling detached portions of its right of way. And this was declared the law although the mechanics’ lien statute made no specific exceptions in favor of railroads, but declared in general terms the laborer and material-man entitled to a lien against all buildings or improvements into which were put such labor or materials. The same rule must apply here and for like reasons. Although the charter declares no exemption in favor of the railroad right of way, and uses words of general description which might include the lands over which the road is built, yet the same policy that will deny a mechanics’ lien in the one case must in the other refuse a lien for street improvements. This same policy which disapproved the enforcement of special liens against separate and distinct parcels of a railroad, manifested itself in the subsequent act of the legislature in 1873. Revised Statutes, 1879, sec. 3200, et seq. Although by that act liens in favor of material-men and laborers were provided for as against railroads, yet the lien was made to apply to the whole line of railroad, and the lienor was not permitted to proceed and charge a fractional part. Knapp v. Railroad, 74 Mo. 374 .

Following then the spirit and evident trend of these decisions, the enforcement of these tax bills cannot be permitted, as, in order to make the judgment available, some three hundred feet of this railroad highway must be segregated from the continuous whole, and sold and conveyed to a third party. Indeed if this lien should be allowed there is but one judgment that could be rendered, and that is that the land sought *271 to be charged be sold under a special fieri facias. There could be no personal judgment against the defendant. This has been so often decided that citations of authorities áre unnecessary; And, since this detached part of the right of way cannot be taken and sold on execution, it is clear that there is no valid lien. Dugan Stone Co. v. Gray, 43 Mo. App. 675 .

Plaintiff’s counsel, with laudable industry,' have collated numerous decisions from other states, which tend in a great measure to sustain their contention here. But it will serve no useful purpose to go over these cases. Some are in point; but, as in our estimation, these stand opposed to the well established law in Missouri, we must decline to follow them. The want of harmony between the courts of some of the states and Missouri, on the right to charge the right of way of the railroad for street improvements, may be in part accounted for on the difference of opinion as to the personal liability of the property owner. The courts of Missouri in later years — contrary to the earlier decisions —uniformly hold that such special taxes are alone a charge against the property, and can fórm no basis whatever for a personal judgment against the owner (defendant’s counsel in their brief have cited some of the leading cases) ; while in some of the states the personal, liability of .the owner seems conceded. For example, in a late case from the supreme court of Kansas (and which plaintiff’s counsel have furnished us since the argument in open court) an assessment for paving a street was sustained against a courthouse square. And yet in this case the court, in effect, declares that no lien can be enforced against the land; for the court says, “a courthouse cannot be sold or disposed of under tax proceedings or at forced sale for special assessments or taxes levied upon the ground thereof.” The assessment was allowed, however, as a *272 charge against the county — to be collected as any other judgment against the county. Board of Commissioners v. Ottowa, 31 Pac. Rep. 788 .

This clearly could not be allowed in this’ state; for, as already said, such charges for local improvements are liens or charges against the property and nothing more. There is no such thing in this state as a personal obligation on the owner to pay the assessment. If it can’t be collected by the enforcement of a specific lien against the adjacent property it can’t be collected at all.

The judgment of the circuit court must be affirmed.

All concur.