Oregon Short Line Railway v. Gooding , 6 Idaho 773 ( 1899 )

HUSTON, C. J.

— This action was brought to restrain the defendant, as assessor of Lincoln county, from collecting certain taxes assessed against the property of the plaintiff corporation for the year 1897. Judgment was rendered in the district court in favor of the plaintiff and against defendant, and from said judgment this appeal is taken.

The only question presented by the record for our decision is, Was the assessment by the assessor of Lincoln county authorized by law? It is contended by respondent that under the statutes of Idaho all of the property, the assessment of which by tbe assessor of Lincoln county is contested by the plaintiif, should have been assessed by the state board of equalization. Whether it was so assessed by said board does not appear by the record. Section 1490, Laws of 1895, is as follows: “Sec. 1490. The state board of equalization shall have exclusive power to assess and value for purposes of taxation all telegraph and telephone lines and the ‘railroad track’ and ‘rolling stock’ of all persons, companies or corporations owning, operating or constructing any telegraph or telephone line, or railroad, wholly or partly within this state. For the purposes of this act ‘railroad track’ shall be deemed to include right of way, superstructures on the right of way, whether on main, side or second track, or turnouts and the stations and improvements thereon belonging to, used, operated or occupied by any person, company or corporation, owning, operating, or constructing any line of railroad, wholly or partly within this state. For the purposes of this act ‘rolling stock’ shall be deemed to include all movable property owned, used, occupied or operated in connection with any railroad, wholly or partly within this state. All property belonging to any person, company or corporation, owning, operating or constructing any railroad wholly or partly within this state, not included within the terms ‘railroad track’ or ‘rolling stock’ shall be assessed by county assessors as other property is assessed in this state.” Section 1491, page 115, of the Laws of 1895, provides for the listing by the proper officer of any telegraph, telephone, or railroad company of the property of such company assessable by the state board of equalization, and the property therein described is as follows: “The whole number of miles of telegraph or telephone line, the number, of vire, the number of instruments, the number of miles of railroad (main, side and second tracks and turnouts being separately stated), the property held for right of way, the amount and character of improvements, and the stations located on the right of way; and under the head of ‘rolling stock’ shall list the number of locomotives of all classes, passenger-cars of all classes, sleeping-cars, dining-cars, express-ears, baggagc-cars, stock-cars, platfrom-cars, wrecking-cars, pay-ears, hand-ears, and all other kind of cars.” It will be seen that the railroad track is deemed to include the right of way and any superstructures thereon, whether the same be “on main, side or second track, or turnouts, and the stations and improvements thereon belonging to, used, operated or occupied by any person,” etc. The term “right of way” can only be understood as embracing the land used as a way for the road, and not such additional ground as may be used for the convenience of the railroad, but not a part of its way. (Railroad Co. v. Paddock, 75 Ill. 616.) This we conceive to be an entirely proper and correct definition of the right of way of a railroad company. The contention of respondent seems to us to include in the term “right of way” the entire earth, or at least so much thereof as the convenience of the railroad may seem to require, or the modesty of the company will permit them to assert. It seems to us that the statute of our state in regard to what property of the railroad company is aceessable by the state board of equalization, and what by the local assessor, is entirely clear. The right of way in the present case was granted to the railroad company by the federal government. The statute of this 'state defines the railroad track to be the right of way and all improvements thereon, and the same is declared to be assessable by the state board of equalization, and “all property belonging to any person, company or corporation, owning, operating or constructing any railroad, wholly or partly within this state, not included within the terms ‘railroad track’ or ‘rolling stock,’ shall be assessed by county assessors as other property is assessed in this state.” It seems to us entirely clear that the property in question was, under the provisions of the statutes of this state, assessable by the county assessor, and not by the state board of equalization. We are unable to see wherein the decision of the territorial supreme court in Oregon etc. Ry. Co. v. Yeates, 2 Idaho, 397, 17 Pac. 457, has any application to the case under consideration, as the statutes have been radically changed .since that decision. The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with this opinion. Costs to appellant.

Quarles and Sullivan, JJ., concur. (January 27, 1900.)