Southern Pacific Co. v. City of Madera

The plaintiff sought to recover a judgment against the defendant for certain money paid by plaintiff to redeem street improvement bonds secured by a lien upon its property in the city of Madera. A general demurrer to the complaint was interposed by defendant, but was overruled, and by its answer the defendant admitted all of the allegations of the complaint excepting the allegation that the claim of plaintiff was due, owing, and unpaid. The case coming on for trial was submitted to the court upon the allegations in the complaint, as admitted by defendant in its answer. Judgment was rendered for the defendant, and the plaintiff has appealed.

On the oral argument of the appeal counsel for respondent urged the point that the complaint fails to state a cause of action. It appears from the complaint that in 1913, following the presentation of an application by the city of Madera for permission to extend Sixth Street at *Page 654 grade between E and F Streets, across the right of way of the Central Pacific Railway Company in that city, the Railroad Commission granted the applicant permission as prayed for, and by its order provided that the cost of constructing the crossings across the tracks and right of way should be borne by the city, and that the cost of maintaining thereafter the crossings and approaches to the crossings should be borne by the city and the company in the following proportions, to wit, the cost of maintaining the crossings over and between the tracks and to a distance of two feet outside the outer rails of the two tracks of the company should be borne by the company, and the cost of maintaining the remainder of the crossings and the approaches to be borne by the city. Sixth Street was then constructed and extended across the right of way of the company. Thereafter the board of trustees of the city, proceeding under the "Improvement Act of 1911" (Stats. 1911, p. 730) and the "Improvement Bond Act of 1915" (Stats. 1915, p. 1441), ordered the improvement of Sixth Street between C Street and H Street, including the extension of Sixth Street across the right of way of the Central Pacific Railway Company between E Street and F Street, excepting, however, such portions as were required by law to be kept in order and repair by any person or company having any railroad tracks thereon, and the cost of said work was made chargeable upon a district, which included a part of the right of way of said company. A contract was entered into between the superintendent of streets and one Crummey for the improvement of the street, and the superintendent made and returned to the board of trustees an assessment of the cost and expenses of the improvement upon the property within the district and "in and by said assessment and warrant there was charged to property of said Central Pacific Railway Company, on account of said improvement, the sum of $2,751.41," which sum, it is specifically alleged, "did not include any part of the cost of improving the crossings of Sixth Street over and between the tracks of Central Pacific Railway Company and within a distance of two feet outside the outer rails of the outer tracks on the east and west sides of said right of way, but was wholly for and on account of expenses of the improvement of the intersections of said Sixth and E Street and said Sixth Street *Page 655 and F Street." The assessment and warrant were protested by plaintiff, and a copy of the protest is attached to the complaint and made a part thereof. At the hearing held by the board of trustees on said protest, the plaintiff "protested against said assessment in so far as the same included any portion of the expense of improvement of that part of the extension of Sixth Street across the right of way of Central Pacific Railway Company, which defendant, under the order of the Railroad Commission of the State of California hereinbefore referred to, was obligated to construct and maintain, and did tender and offer to pay whatever amount of said assessment said Board of Trustees or the Superintendent of Streets should find to be properly chargeable on account of the improvement of said intersections of Sixth Street and E Street and Sixth Street and F Street." The board confirmed the assessment and warrant as returned by the superintendent of streets; the company was compelled to expend the sum of $3,811.88 to release its property from the lien created by the issuance of bonds under the acts referred to, and it then presented to the defendant its verified claim in writing for refund of said $3,811.88, which claim was rejected. Plaintiff then brought an action to recover from the defendant the full amount so paid by it to redeem the bonds.