| N.C. | Oct 13, 1915
Civil action, heard on motion to dissolve a preliminary restraining order.
The action was to compel commissioners of drainage district to complete and carry out the scheme of drainage so as to afford the benefits to plaintiffs' land as contemplated in the establishment of the district and, in the meantime, to restrain the collection of the assessment laid by the drainage commissioners to pay the accumulated interest (644) on the bonds issued for cost and maintenance, etc.
On the hearing it was made to appear that the district had been established on petition regularly filed; that preliminary and final reports had been approved; drainage commissioners appointed; bonds to the amount of $45,000 issued; an assessment made to pay the accumulated interest thereon, which the commissioners were proceeding to have collected for the purpose, as provided by the statute, etc.
There was evidence, also, on the part of plaintiffs that, in carrying out the scheme of drainage provided for, the commissioners had failed to extend the same so as to afford any benefit to plaintiffs' land, and further, they made some alterations in one of the lateral ditches, and allowed one R. A. Richardson to maintain a dam on his lands lying adjacent to and below the lands of plaintiffs, thus preventing a proper drainage of plaintiffs' lands, contrary to the scheme and plan adopted and contained in the final report of the viewers and confirmed by the court.
To these allegations defendants offered affidavits making averment that the commissioners were carrying out the plans as contemplated and provided for in the report of the board of viewers.
Further, that no alterations were made in the canal as established, except to make same more efficient, and these fully within the discretionary powers conferred upon them by the law, and any minor changes made by them they had acted on their best judgment and under the advice and direction of a competent engineer, and that they thereby increased the efficiency of the general plan and afforded better drainage *730 to the lands and without increasing the cost and estimates shown on the final reports.
His Honor, on consideration of the facts in evidence, entered judgment dissolving the restraining order "for the purposes of suffering and permitting the collection of the assessments, and continued the cause for such other and further relief as the plaintiffs may show themselves entitled to."
Plaintiffs excepted and appealed.
After stating the case: There have been several of the more recent decisions of the Court upholding the validity of these drainage laws, chapter 67, Laws 1911; chapter 442, Laws 1909, and chapter 88, Revisal of 1905, and dealing to some extent with the effect and procedure under them.Drainage Commissioners v. Farm Association,
From a perusal of these cases on the procedure required for the proper formation of the district, notably that of Shelton v. White, supra, it will appear that the proceedings may be instituted by a majority in number or by the owners of three-fifths of the land in a given area, and on their petition filed before the clerk a board of viewers shall be appointed, to consist of two resident freeholders of the county, and a competent civil and drainage engineer, this last to be on the recommendation of the State Geologist, who shall go upon the land, make careful examination of the same, and report on the general feasibility of the scheme, etc. On the coming in of this report and the settlement of objections thereto, for making of which notice and opportunity is provided, if the scheme is approved, the drainage district is established and the board of viewers are then directed to make a second and more extended report, based on a complete survey of the land, marking out the course of the main and all lateral ditches, levees, etc., giving a description of each owner's land, etc., etc., and they shall file with this report a drainage map of the district, showing "the location of the ditch or ditches and other improvements, and the boundary, as closely as may be determined by the records of the lands owned by each individual landowner within the district. The location of any railroads or public highways, and the boundary of any incorporated towns or villages within the district, shall *731 be shown on the map. There shall be also prepared to accompany this map a profile of each levee, drain or water-course, showing the surface of the ground, the bottom or grade of the proposed improvement, and the number of cubic yards of excavation or fill in each mile or fraction thereof, and the total yards in the proposed improvement and the estimated cost thereof, and plans and specifications, and the cost of any other work required to be done." Laws 1909, ch. 224, sec. 10.
The second report shall also contain a classification of the lands and a rate of assessment for the same, as directed in section 12 of the act.
On the coming in of this second report, notice and opportunity for objection is again provided for, and, when the objections have been adjusted and settled pursuant to the law, the proceedings are all recorded in a special book, called the drainage record, and the maps thereof filed in the office and one of these pasted or otherwise attached to the record book, thus giving to every one interested full opportunity to observe and note in detail the scheme and plans for carrying out the undertaking.
It may be well to note, also, that in Shelton v. White, supra, it was held, that while the individual or minority landowner could present his objection and have the matter determined in respect to (646) either the preliminary or completed report, the issue as to him is confined to the effect upon his own land, and if the material question involved is decided in his favor, and it is found that his land was in no wise benefited, the court has the power either to exclude his land from the drainage district or, if it was found necessary to retain it in order to the success of the scheme, it could be retained and the owner compensated in damages for any injury done, ample provision being made in the law for such a course (Laws 1909, sec. 11); and further, that a majority in number of the landowners or three-fifths in the amount of land, could, even to the second report, by their exceptions, taken in apt time, raise and maintain objections to the validity of the entire scheme.
When the final report is filed and recorded provision is made for the selection of a board of drainage commissioners, and for the appointment of a superintendent of construction, and from a careful perusal of the statute it will appear that these officers are charged with the duty of carrying out, substantially, the plans and specifications of the report as recorded, and that their powers in the premises are largely ministerial in character. They make out the assessment rolls, which are constituted a lien on the property, as in case of tax lists, observing the classification and ratio of assessment determined upon by the board of viewers.
True, under the provision of section 4 of the act the drainage commissioners are given "power to correct errors and modify the report of *732 the details of the report of the engineer and viewer if, in their judgment, they can increase the efficiency of the drainage plan and afford better drainage to the lands of the district without increasing the estimated cost submitted by the engineer and viewers and confirmed by the court," but this modification of the former law only contemplates such minor changes of "detail" as not infrequently occur in the practical carrying out of plans which have been indicated in a careful survey, and does not, as stated, and was not intended to authorize substantial departure from the plans as contained in the final report of the board of viewers.
The careful and minute provisions of the statute in reference to the final report, requiring that the course of the main and all lateral canals and ditches shall be carefully marked out, the boundaries of the lands given, the levels ascertained and stated, and both surface and profile maps made and recorded, and the restricted terms in which the power to alter it is given to the drainage board to "correct errors and modify details," affords convincing evidence that, by correct interpretation, this final report of the board of viewers is the controlling chart by which the drainage commissioners are to be guided in constructing the work (647) and making out the assessment rolls under the law. And if, in a suit of this character, it should be clearly made to appear that the commissioners of drainage, in carrying out the ministerial duties imposed upon them, should endeavor to collect of the landowners sums in excess of their own assessment, or that they had made out these rolls in utter disregard of the classification and ratio of assessment established by the report, or that they had made such changes in the plans and specifications of the final report as to exceed their powers in the premises and work substantial wrong and hardship upon the individual members of the district, in either case, the complainant being free from laches or undue delay, the court would have the right to interfere and stay the collection of the amounts until a proper assessment could be established. But, when the commissioners, adhering substantially to the plans and specifications of the report, have made assessments contemplated and authorized by the law, then collection should not be stayed because the scheme has not afforded to a landowner the drainage he had anticipated. That was a question that was settled at the time the report was adopted and the district established, and may not be again questioned in a proceedings of this character. Nor will the creditor be hindered in the present collection of his debt, otherwise properly assessed, because the drainage commissioners, in breach of these duties under the law, have failed to do their work efficiently or to properly open and construct the drains, since a default of that kind must be corrected by proper action between the members and the commissioners, a course *733 still open to plaintiff on the record, if the necessary facts are ultimately established.
This being, to our mind, the proper construction of our drainage statutes, and it is in accord with decisions on the subject here and elsewhere interpreting laws of similar import, Newby v. Commissioners, 163 N.C. supra; White v. Lane,
1. On the ground that the drainage commissioners have not properly carried out the drainage scheme, and that the work done has afforded plaintiffs' land no substantial benefit.
2. That they have made departure from the plans and specifications of the board of viewers, to plaintiffs' injury.
As we have endeavored to show, the first ground may not be asserted against regular assessment to pay the bondholders. And, on careful consideration of the pleadings and affidavits, we are unable to (648) discover that the drainage commissioners have made such substantial departure from the plans and specifications of the board of viewers as to render their assessment void. Apart from this, it appears that the assessments which the commissioners are now seeking to collect, purporting to be in pursuance of authority vested in them by law and the terms of the decrees in the cause have been made and filed with the clerk of the Superior Court since 1911, and that no legal objection has been made thereto by plaintiffs or anyone else until the commencement of the present suit in 1914, and it would seem that plaintiffs have thereby waived the right to object to the assessments in so far as the creditor is concerned.
We find no error in the judgment of the court, and the same is in all respects.
Affirmed.
Cited: Lumber Co. v. Drainage Comrs.,