North Coast Fire Ins. Co. v. Lincoln County

• Decision Date: 15 August 1914
• Docket Number: 11900.
• Citation: 81 Wash. 311,142 P. 661
• Court: Washington Supreme Court
• Parties: NORTH COAST FIRE INS. CO. v. LINCOLN COUNTY.

142 P. 661

81 Wash. 311

NORTH COAST FIRE INS. CO. v. LINCOLN COUNTY.

No. 11900.

Supreme Court of Washington

August 15, 1914

Department 2. Appeal from Superior Court, Lincoln County; Joseph Sessions, Judge.

Suit by the North Coast Fire Insurance Company against Lincoln County. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

McBurney & O'Connor, of Seattle, for appellant.

Jas. S Freece and C. A. Pettijohn, both of Davenport, for respondent.

PARKER J.

This is an action to cancel and enjoin the collection of a tax levied upon land now owned by the plaintiff in Lincoln county, to pay the cost of destroying noxious weeds growing thereon. From a judgment of the superior court of that county denying the relief prayed for by the plaintiff, it has appealed to this court.

It is contended by counsel for appellant that the tax was unlawfully levied upon the land of which it is now the owner and that the tax is void in that it was sought to make the cost of destroying noxious weeds a charge thereon without previous personal notice requiring the owner of the land to destroy such weeds, as prescribed by section 3040, Rem. &amp Bal. Code, as amended by chapter 60, page 328, Laws of 1911. During the whole of the year 1912, and for some time prior thereto, William E. Bergey was the owner of the land upon which the tax is sought to be levied. During all the time he was such owner, he was a resident of Spokane in this state. On the 21st day of May, 1912, the road supervisor of the road district in Lincoln county, in which the land is situated, 'posted notice for the destruction of noxious weeds upon the land, which was in all respects a good and sufficient notice to a nonresident landowner.' No personal service of any such notice was ever made upon William E. Bergey, the then owner of the land. During the whole of the year 1912 the land was unoccupied, and William E. Bergey, the owner, had no agent in Lincoln county. The road supervisor did not know or learn of the place of residence of William E. Bergey, though he made due inquiry relative thereto, and posted the notice on the land believing that William E. Bergey was not a resident of the state of Washington. Appellant became the owner of the land in the year 1913, after the levy of the tax thereon, through foreclosure of a mortgage upon the land, which had been executed by William E. Bergey's grantor. These are the agreed facts.

Section 3040, Rem. & Bal. Code, as amended by chapter 60, page 328, Laws of 1911, so far as necessary for us to notice its provisions, reads as follows:

'It shall be the duty of each road supervisor in each road district in this state to see that the provisions of this act are carried out within their respective districts, and he shall give notice to the owner, lessee, occupant, agent or person having the care or charge of any land within his district whereon, or in any road, street or highway bordering thereon, any noxious weeds are growing, requiring such owner, lessee, occupant, agent or person having the care or charge thereof, to cause the same to be cut down within ten days from the service of such notice, and in case such owner, lessee, occupant, agent or person having the care or charge thereof shall refuse or neglect to cut down said noxious weeds within said ten days, then the said road supervisor shall enter upon the land, or on any road, street or highway bordering thereon, and cause all said weeds

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