Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
The Hudson County Board of Taxation and the Division of Tax Appeals concurred in a holding that certain land owned by respondent Pennsylvania Railroad Company was in use for railroad purposes and therefore not subject to local assessment by appellant Jersey City. Consequently, the assessments for the years 1952, 1953 and 1954 were vacated. The city now challenges the legal propriety of the action on this appeal.
Attention may be drawn to the locus about which the controversy centers, by a general reference to it as the Journal Square station of the Pennsylvania and Hudson and Manhattan railroads. Just west of this point, the right of way passes under Hudson Boulevard, running through a deep cut, the tracks being about 40 feet below grade. The land on which the city imposed the assessment is about 24,000 square feet. In this area there are two sets of tracks, station buildings, various small necessary structures, the columns that support the buildings, the rocky slope supporting the embankment on the south side of the cut, the overhead catenary and other incidental apparatus. It is undisputed that the entire 24,000 square feet are in railroad use and necessary for that use.
The passenger station was built about 1912; it houses the joint facilities of the Pennsylvania and the Hudson and Manhattan lines. On the northerly side, the roof of the westerly portion of this structure extended to and was substantially
at the street grade of Hudson Boulevard, and about a story above the passenger platform. On the southerly side, originally this westerly portion did not extend to the northerly line of Concourse East, a public street intersecting the Boulevard; there was an open area about 20 to 30 feet in width which began at the Boulevard and continued along the Concourse a distance of about 130 feet to the westerly line of the above grade section of the station. At the easterly end, the roof of the building was and is about two additional stories above grade. This portion is the station proper (the principal entrance being from the Concourse), where the ticket offices, etc. , of the railroads and some independent commercial activities of tenants, such as a news and magazine stand, candy and bakery shops, and lunch counters are located. The entire station and platforms from westerly to easterly extremities are supported by pillars which run through the passenger platforms to the ground. Prior to 1952, the land and structures described were admittedly in railroad use and were taxed as such.
In 1948 the Pennsylvania leased what have been designated certain "air rights" to one L. N. Rosenbaum. The lease is unusual in that it did not carry any land with it; in fact it excluded from the grant the areas "below a horizontal plane drawn at elevation of 91.7" and "drawn at elevation 70.50," these elevations representing roof top levels of the station structures. Under it the lessee acquired the right to erect a building which would cover the roof top of the part of the station which, as indicated, was built to the grade of Hudson Boulevard, project across the 20 to 30 foot open area on the south to the northerly line of the Concourse, and extend east and west from the Boulevard to the westerly wall of the main and higher portion of the station. Such a two-story brick building was then constructed by respondent, Armed Realty Corporation, as sublessee. It fronts on the Boulevard and extends along the Concourse to the westerly wall of the station. For its full depth on the northerly side it rests on the westerly projection of the station and is supported by the same pillars as the station. On the southerly
side seven steel columns and their footings were placed on the land surface of the cut, three of them being at least partly built into the rock embankment of the cut. On these columns rest the beams which support the floor of the southerly side of the building; they were erected in the extremely narrow space between the tracks and the side of the cut, and they represent the only additional physical occupation of land as the result of the new edifice Aside from them, all support is derived from the old station structures and the original pillars on which they rest. The visual effect is that the addition is simply a continuation of the old station and within its wall lines as projected. The operation of the trains has not been at all affected; they now pass under the building. The overhead catenary and other incidental equipment are attached to its floor beams. About 90% of the entire new construction is actually superimposed on the old station building. The overall railroad use continues unabated.
Upon completion the stores in the new building were rented by the sublessee to tenants for private retail commercial enterprises. One of the stores contains an entrance to a stairway leading down to the station. Since 1952 the new structure has been assessed locally by appellant at $225,000 and the taxes paid. No issue is raised with respect to the propriety of that assessment.
For many years down to the present time, pursuant to N.J.S.A. 54:29 A -16, Jersey City has reported the 24,000 square foot land area involved in these proceedings as land used or owned for railroad purposes. Specifically, the statute requires local assessors, on request of the Director of the State Division of Taxation, to certify and send to him "a short description of all the real property in their respective taxing districts used or owned for railroad purposes" (except main stems). The Director is vested with the jurisdiction and is under a mandate to assess such property "in the manner and at the rates" provided by the Act. N.J.S.A. 54:29 A -7. And he is directed to determine the true value of all real estate in each taxing district in the State which
is used for railroad purposes, "including the roadbed (other than main stem), tracks, buildings, water tanks, riparian rights, docks, wharves and piers, and all other real estate, except lands not used for railroad purposes." N.J.S.A. 59:29 A -17. (Emphasis added)
Pursuant to the certification of the city that the entire area in question is devoted to railroad use and is necessary for such use, the Director has assessed it for the years 1952, 1953 and 1954. No appeals were taken by the city under N.J.S.A. 54:29 A -31 from his assessments and the taxes resulting therefrom have been paid. According to N.J.S.A. 54:29 A -11, taxes so assessed "shall be in lieu of all other State or local taxation of or measured by property taxable hereunder."
In spite of the concession that all of this land is devoted to and essential for railroad purposes, the city undertook to assess and tax it again locally for the same years. The asserted basis for the right to do so is N.J.S.A. 54:29 A -4, which says:
"All the property of a railroad company not used for railroad purposes shall be assessed and taxed by the same assessors, in the same manner and at the same rate as the taxable property of other owners in the same taxing district."
The assessments were lodged against the lessee, Armed Realty Company, instead of against the railroad owner. Objection is made on this score but it has no substance. According to N.J.S.A. 54:4-54, "No assessment * * * shall be considered invalid because listed or assessed in the name of one not the owner thereof * * *." See also N.J.S.A. 54:29 A -39. Becker v. Mayor and Council of Borough of Little Ferry , 126 N.J.L. 338 (E. & A. 1941); 2 Cooley, Taxation (4 th ed. 1924), § 958.
In support of taxability under the quoted section of the act, N.J.S.A. 54:29 A -4, the argument is made that the land is devoted to a double use, namely, a local commercial use superimposed upon a railroad use. More specifically, it is said that the 24,000 square foot land area supports not
only the railroad tracks, equipment and station, but also the new building which rests on top of the station structures and to some extent on the seven additional columns on the southerly side. The insistment is that in order for respondent's building to remain in its elevated position, it draws a measure of support from every square foot of the area, just as the railroad plant and equipment do; and therefore to that extent the land is devoted to a local commercial use justifying the very substantial municipal assessments that are under attack.
As already indicated, on appeal the county tax board vacated the land assessments and the Division of Tax Appeals affirmed the order. Since the city and state assessments represented dual impositions, the jurisdiction of Division of Tax Appeals could have been invoked in a summary fashion to determine the character of the property, whether it is ...