Northern P. Ry. Co. v. Adams County

• Decision Date: 06 February 1914
• Citation: 78 Wash. 53,138 P. 307
• Parties: NORTHERN PAC. RY. CO. v. ADAMS COUNTY.
• Court: Washington Supreme Court

138 P. 307

78 Wash. 53

NORTHERN PAC. RY. CO. v. ADAMS COUNTY.

Supreme Court of Washington

February 6, 1914

Department 2. Appeal from Superior Court, Adams County; O. R. Holcomb Judge.

Action by the Northern Pacific Railway Company against Adams County. Judgment for defendant, and plaintiff appeals. Affirmed.

Geo. T Reid, J. W. Quick, and L. B. da Ponte, all of Tacoma, for appellant.

W. O Miller, of Ritzville, for respondent.

MOUNT J.

The lower court sustained a demurrer to the complaint in this action. The plaintiff elected to stand on the allegations of the complaint, and the action was dismissed. The plaintiff appeals.

The complaint alleges, in substance: That the plaintiff owns and operates a line of railroad in the state of Washington extending through Adams and other counties and occupies therewith a right of way generally of the width of 200 feet. In the year 1912 the defendant, acting through its road supervisor, gave due notice to the plaintiff to cut down and destroy certain noxious weeds growing on one of the public highways in the defendant county parallel to and abutting upon that part of the plaintiff's right of way over and across the N.W. 1/4 and the N.W. 1/4 of section 13, township 19 N., of range 35 E. W. M. That the plaintiff having failed and refused to destroy said noxious weeds within ten days, the road supervisor procured the necessary assistance and destroyed the noxious weeds, and thereby incurred the necessary and reasonable expense of $20.80, and has mailed a statement thereof, including a description of the land, to the plaintiff, requiring it to pay the same within 30 days. The plaintiff having refused to pay such sum, the claim was presented by the proper officer to the county commissioners, and the same was examined, found correct, allowed, and Adams county paid to the road supervisor the sum claimed, and made an order that such sum should be taxed against the plaintiff's right of way. The county treasurer thereupon entered such sum on the tax rolls of Adams county as a tax for the year 1912 against the right of way, which sum, together with penalties, interest, and costs, now stands as a tax on the rolls of Adams county for the year 1912 against the plaintiff's right of way. That the defendant now claims and pretends that this sum is justly due and owing, that it is a valid lien and tax against the plaintiff's right of way, and it will, unless restrained, endeavor to collect the same by process of law, as prescribed by the general laws of Washington relating to the collection of delinquent taxes. It is also alleged that sections 3038 et seq., Rem. & Bal. Code, as amended by chapter 60, p. 327, of the Laws of 1911, particularly sections 3039 and 3040, as so amended, in so far as the same undertake to and do impose a duty upon a landowner to cut noxious weeds growing upon public highways in the state, and in so far as they undertake to make the cost of cutting the same a lien upon lands bordering upon highways, and in so far as they authorize the levy of a tax upon lands bordering on such highways for the cost of cutting weeds thereon and the sale of such lands for and on account of the cost of cutting such weeds so incurred, are in violation of article 1, § 3, and article 7, § 2, of the Constitution of the state of Washington, and are in violation of the fourteenth amendment to the Constitution of the United States, and are null and void. The complaint also alleges that the plaintiff has paid all taxes justly due, including all charges for cutting weeds upon its own land or right of way. The prayer is that the illegal tax be canceled and removed as a cloud on the plaintiff's title to its right of way and that the defendant be enjoined from attempting to collect the same.

The appellant first contends that while sections 3038, 3040, and 3041 seem to contemplate that the cost of cutting weeds to the center of abutting highways shall be taxed to the abutting land, section 3042, which deals specifically with the matter of assessing the cost, does not so provide; that it merely provides that the county commissioners shall make an order that the amount paid shall be 'a tax on the land on which said work was done'; and that section 3039, which provides that the failure to cut noxious weeds on any road or highway to the center thereof shall constitute a misdemeanor, is the only remedy in cases of this kind. But we think the whole chapter should be construed together, and, when so construed, indicates quite plainly that it was the intention of the Legislature that the money so paid should be a lien upon the land abutting upon the highway, and that the criminal statute is merely a cumulative remedy.

The principal contention of the appellant is that the statutes above referred to are violative of the constitutional sections above mentioned for the reason that compelling property owners to cut noxious weeds to the center of the highway is a taking of private property for a public use without compensation; and also is a taking of property without due process, contrary to the federal Constitution.

It is conceded by the appellant that the statutes referred to, in so far as they impose a duty upon the citizen to keep his own premises clear of noxious weeds, is a valid statute. This court has so held in Wedemeyer v. Crouch, 68 Wash 14, 122 P. 366, 43 L. R. A. (N. S.) 1090. See, also, Los Angeles County v. Spencer, 126 Cal. 670, 59 P. 202, 77 Am. St. Rep. 217; M., K. & T. R. Co. v. May, 194 U.S. 267, 24 S.Ct. 638, 48 L.Ed. 971. So far as we are advised, no state, except this one, has gone to the extent of providing that the owner of land abutting upon a public highway must cut noxious weeds to the center thereof. Other states have only gone to the extent of requiring the owner of land to cut noxious weeds upon his own premises. But this state has required that such owner shall cut noxious weeds to the center of the highway. We said, in Wedemeyer v. Crouch, supra, that these statutes are 'a strictly police...