Northern P. Ry. Co. v. Walla Walla County

• Decision Date: 01 September 1921
• Docket Number: 16291.
• Citation: Northern P. Ry. Co. v. Walla Walla County, 200 P. 585, 116 Wash. 684 (Wash. 1921)
• Court: Washington Supreme Court
• Parties: NORTHERN PAC. RY. CO. v. WALLA WALLA COUNTY et al.

200 P. 585

116 Wash. 684

NORTHERN PAC. RY. CO. v. WALLA WALLA COUNTY et al.

No. 16291.

Supreme Court of Washington

September 1, 1921

Department 2.

Appeal from Superior Court, Walla Walla County; Edward C. Mills Judge.

Action by the Northern Pacific Railway Company against the Walla Walla County and another. Judgment of dismissal and plaintiff appeals. Reversed and cause remanded with directions.

Geo. T Reid, J. W. Quick, L. B. Da Ponte, and C. A. Murray, all of Tacoma, and J. H. Pedigo, of Walla Walla, for appellant.

A. J Gillis, of Walla Walla, and Moulton & Jeffrey, of Kennewick for respondents.

PARKER C.J.

The plaintiff railway company commence this action in the superior court for Walla Walla county, seeking recovery of the sum of $230.87, claimed to have been unlawfully exacted from it by the officers of the defendant's county and irrigation district as an assessment upon certain lands owned by it, for the expense of operating and maintaining the irrigation system of the defendant district, which sum was paid by the railway company under protest for the purpose of preventing the casting of a cloud upon its title to the land in the form of a sale thereof in satisfaction of the claimed lien of the assessment thereon. The county and irrigation district demurred to the complaint of the railway company upon the ground of insufficiency of facts to constitute a cause of action. The demurrers were by the court sustained, and, the railway company electing to stand upon its complaint and not plead further, judgment of dismissal with prejudice was rendered against it, from which it has appealed to this court.

Following the allegations of the corporate existence of the railway company, the county, and the irrigation district, and the ownership of the land by the railway company, the complaint alleges:

'* * * Which property was acquired and owned for the purpose of constructing sand guards or fences in order to protect plaintiff's railway track from being buried and obstructed by drifting sand. Said lands are within the bounds of defendant irrigation district, but the same are not susceptible of any use for agriculture, and could not be devoted to such use because of their nature and topography, being nothing but drifting sands, in which it would be impossible to grow any crops, trees, or shrubs of any kind whatever.

'On or about the 13th day of September, 1918, defendant irrigation district, acting through its duly authorized officers and agents, passed a resolution as follows:

"Be it resolved, that there shall be and is hereby levied against all lands in said irrigation district included in the assessment roll as benefited lands, an assessment in the aggregate of $18,200 to cover the following items which are hereby declared to be the necessary amounts for interest, maintenance and operation, and emergency, deficit:

Interest on bonds issued ..................	$ 1,040
Expense of operation and maintenance for the ensuing year ...............	14,560
Fund to cover deficit .......................	2,600
-------
Total ...................................	$18,200

"And be it further resolved that the Sec. be and is hereby directed to extend the assessment roll as against such tract of land appearing thereon, in accordance with the ratio of benefits as heretofore fixed and established; and upon said extension being made the Sec. is directed to file the assessment roll with the county treasurer as by law provided.

"Passed by the board of directors this 13th day of September, 1918.

"J. H. Sharry, Sec.

"A. H. Hawkins, Pres.'

'Pursuant to said resolution there was levied an assessment against plaintiff's land in the sum of $14.06, interest on bonds, the sum of $195.94 for maintenance of the irrigation system used for furnishing water to lands within the district, and the sum of $34.93 for a deficit on account of previous years' maintenance of said irrigation works, or a total of $244.93. * * * Said assessment was duly certified to the county treasurer, and was by that officer spread on the tax rolls for the year 1918. * * *

'Said assessment is illegal and void to the extent that the same was levied against plaintiff's lands for the maintenance of said irrigation system for the year 1918 and for said deficit for previous years' maintenance, in that there is no provision or authority of law for levying an assessment for maintenance on any lands within the district which are not being irrigated or are not susceptible of irrigation and cultivation on account of their character and topography. * * *

'* * * The only portion of said assessment which could be lawfully levied upon plaintiff's lands was that for interest on bonds in the sum of $14.06 as aforesaid. * * *

'On the 31st day of December, 1918, plaintiff duly tendered to the county treasurer of defendant county said sum of $14.06 in payment of

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