City of San Diego v. Atchison, Topeka & Santa Fé Ry. Co.

Upon the original submission of this ease an opinion was prepared by Judge DIE.TRICH, but after his death the ease was restored to the calendar for reargument and has been resubmitted to the court by stipulation of the parties. Upon full consideration the opinion of Judge DIETRICH, which follows, is adopted as the opinion of the court.

“By the decree below the appellant is enjoined from enforcing an assessment-made by •its officers upon property constituting a portion of appellee’s terminal facilities in the city of San Diego, to cover the expense, in part, of opening a street in the vicinity thereof. The total cost of the proposed work was determined to be $54,565.83, of which $12,-607-12 was assessed against appellee’s property. The decree followed a finding that the projected improvement, if not detrimental, would at least be of no benefit to appellee.

“Appellee’s depot and appurtenances are at the eornér of Broadway and Kettner streets) with entrances from both streets. •Broadway is a wide thoroughfare, running east and west, and easterly from the depot penetrates the main business section of the city. Kettner street, not so wide, extends indefinitely north and south at…

(dissenting).

The property occupied by the Atchison, Topeka & Santa Fé Railway Company as depot ground is assessed for the opening of C street. This street abuts directly in front of the depot and will permit travel along said street to reach the depot grounds and to pass therefrom. These depot grounds were included by the eity council of the city of San Diego in the assessment district upon the property in which, under the act of the Legislature, the *14 cost of the opening was to be assessed. Under the law an opportunity was given to the property owners to be heard upon the question as to whether or not their property included in the district would be benefited by the proposed improvement. The railway, company exercised the right to be heard, therein accorded, and after such hearing its objection to the inclusion of the depot grounds in the assessment district was overruled "by the city council. Thereafter, in conformity with the law, the cost of the opening of the street was assessed upon the property within the district, including the depot grounds of the appellee.

The trial judge held that the depot property of the appellee would be damaged by the opening of C street. The…