Northern Pacific R. Co. v. Adams County, 78 Wash. 53, 138 Pac. 307 (1914).


           NORTHERN PAC. R. CO. v. ADAMS COUNTY.           53
 Feb. 1914               Opinion Per MOUNT, J.

      [No. 11431. Department Two. February 6, 1914.]
      NORTHERN PACIFIC RAILWAY COMPANY, Appellant, v.
                ADAMS COUNTY, Respondent. 1

AGRICULTURE - NOXIOUS WEEDS - COST - ASSESSMENT - REMEDIES.
Construing together all of the provisions of the act relating.to
cutting noxious weeds (Rem. & Bal. Code, SS 3032 et seq.), the
act contemplates that the cost of cutting weeds to the center of
the highway shall be taxed to the abutting land, and SS 3039,
providing that failure to cut weeds on the highway shall
constitute a misdemeanor merely furnishes a cumulative remedy.

CONSTITUTIONAL LAW - NOXIOUS WEEDS - COST - ASSESSMENT ON LAND
- TAKING PROPERTY WITHOUT COMPENSATION - DUE PROCESS OF LAW. Rem.
& Bal. Code, SS 3032 et seq., providing that the owners of
abutting lands shall cut noxious weeds in the road to the center
of the highway, and on default, the work shall be done by the
county and the cost assessed as a tax upon the land, is valid as
a reasonable exercise of the police power; and is not a taking of
private property without just compensation or without due process
of law.

Appeal from a judgment of the superior court for Adams
county, Holcomb, J., entered June 23, 1913, dismissing an
action to restrain the collection of a tax for destroying
noxious weeds, upon sustaining a demurrer to the complaint.
Affirmed.

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

W.O. Miller, for respondent.

MOUNT

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


1 Reported in 138 Pac. 307.

 54    NORTHERN PAC. R. CO. v. ADAMS COUNTY.
                    Opinion Per MOUNT, J.           78 Wash.

two hundred 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 northeast quarter and the northwest
quarter of section 13, township 19 north, of range 35 east,
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 thirty 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 Rem. & Bal. Code, SS 3032 et seq.
(P.C. 9 SS 51), as amended by ch. 60, Laws of 1911, p. 327,
particularly SSSS 3039 and 3040 as so amended, in so far as
the same undertake to and do impose a duty upon a land
owner to cut noxious weeds growing upon public highways
in the state, and in so far as they undertake to make the cost

           NORTHERN PAC. R. CO. v. ADAMS COUNTY.           55
 Feb. 1914               Opinion Per MOUNT, J.

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, SS 3 and article 7, SS 2 of the constitution of
the state of Washington, and are in violation of the 14th
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 cancelled 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 SS SS 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, SS 3041, 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 SS 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 clearly 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

 56    NORTHERN PAC. R. CO. v. ADAMS COUNTY.
                    Opinion Per MOUNT, J.           78 Wash.

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 Pac. 366, 43 L.R.A. (N.S.) 1090; See, also, Los
Angeles County v. Spencer, 126 Cal. 670, 59 Pac. 202, 77
Am. St. 217; Missouri K. & T.R. Co. v. May, 194 U.S. 267.

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 regulation." And it seems to us
there can be no doubt upon this question. Requiring the
destruction of noxious weeds is a provision for the general
welfare of the community, and must rest for validity upon the
principle of police regulation. The validity of these
statutes, which were considered in Wedemeyer v. Crouch, supra,
was based upon the maxim that, "one must not so use his own
as to injure his neighbor."

While no cases directly in point have been called to our
attention, we think the same principle must govern this case
as controls those cases where property owners have been
required to remove snow and ice from sidewalks in front of
their premises. If the legislature of the state may
authorize a municipal corporation, by ordinance, to require
property owners to remove snow and ice from sidewalks in front
of their property, then it seems clear that, upon the same
principle, the legislature may require property owners within
the state to cut noxious weeds to the center of highways in

           NORTHERN PAC. R. CO. v. ADAMS COUNTY.           57
 Feb. 1914               Opinion Per MOUNT, J.

front of their property. We see no reasonable distinction
between these classes of cases. While the courts of various
states are in conflict on the question of the validity of city
ordinances requiring owners or occupants of property to
remove snow and ice from sidewalks abutting thereon, we are
of the opinion that the better rule is as declared by those
states which hold to the rule that such ordinances are a
valid police regulation. This rule has been followed in
Connecticut in State v. McMahon, 76 Conn. 97, 55 Atl. 591; in
Massachusetts in Goddard, Petitioner, etc., 16 Pick. 504, 28
Am. Dec. 259, and in Clinton v. Welch, 166 Mass. 133, 43
N.E. 1116; in New York in Village of Carthage v.
Frederick, 122 N.Y. 268, 25 N.E. 480, 19 Am. St. 490, 1
L.R.A. 178; affirming 44 Hun 625; in Montana in Helena v.
Kent, 32 Mont. 279, 80 Pac. 258, and in Rhode Island in
State v. McCrillis, 28 R.I. 165, 66 Atl. 301, 9 L.R.A.
(N.S.) 635, 18 Am. & Eng. Ann. Cas. 701. The opposite has
been held in Illinois in Chicago v. O'Brien, 111 Ill. 532, 53
Am. Rep. 640; in New Hampshire in State v. Jackman, 69
N.H. 318, 41 Atl. 347, 42 L.R.A. 438, and in the District
of Columbia in McGuire v. District of Columbia, 24 App.
D.C. 22. An interesting note to the Montana case will be
found in 4 Am. & Eng. Ann. Cas. at p. 238.

In State v. McCrillis, supra, the authorities both for and
against the constitutionality of statutes of this kind are
collected and reviewed and the court concludes, we think rightly,
that measures of this kind are regarded as a police
regulation and are not, strictly speaking, laws levying a tax, the
direct or principal object of which is to raise revenue, but
impose a duty upon a large class of persons directly to their
benefit and are regarded as a police regulation and are not in
conflict with any constitutional provision, either state or Federal,
on the ground of inequality of burdens resulting from the
operation of the law. We think this is the most reasonable
rule and should control in this state.

 58    NORTHERN PAC. R. CO. v. ADAMS COUNTY.
                    Opinion Per MOUNT, J.           78 Wash.

In Village of Carthage v. Frederick, supra, the court said:

"But how is it possible for the authorities of a large city,
with many hundred miles of streets, to remove the snow in
time to prevent injury to those who have the right to travel
upon the sidewalks unless they can require the owners and
occupants of adjacent property to remove it? Every man
can conveniently and promptly attend to that which is in
front of his own door, and it is both reasonable and necessary
that he should be compelled to do so. We think that the
ordinance under consideration is valid; that it conflicts with no
provision of the constitution, and that it is the duty of the
courts to enforce it."

So in this case, with many miles of highways in a county,
it would be utterly impossible for the county authorities to
keep noxious weeds from the highways. It is a comparatively
easy matter for the owners of land abutting thereon to
destroy these noxious weeds. Their destruction is a benefit
principally to the property owners, because, if the property
owners are required to destroy the noxious weeds upon their
lands and such weeds are permitted to grow in the highways,
the destruction of the weeds upon their lands is of no
practical benefit. It is necessary that the weeds upon the
highways be destroyed as well as those upon the adjoining lands.
It is reasonable, we think, that the owners of lands may be
required to destroy noxious weeds to the center of the
highways abutting thereon as a special benefit to their own lands.

While, as we have said, no case has been cited or found by
us directly in point upon the question under consideration,
we are satisfied that the rule relating to snow and ice upon
sidewalks is of the same general character as that relating to
noxious weeds in highways, and that the rule which permits
the abatement of the one nuisance will also permit the
abatement of the other.

We think the judgment of the lower court was right, and
it is therefore affirmed.

CROW, C.J., MORRIS, and FULLERTON, JJ., concur.