46 S.E. 997 | N.C. | 1904
DOUGLAS, J., dissenting. The plaintiff instituted this proceeding against the defendant by filing his petition in the office of the clerk of the Superior Court and issuing a summons in accordance with the provisions of chapter 30, section 1297, of the Code, alleging ownership of a tract of "swamp, flat or low land" — particularly described — known as the "Pigford farm." That the defendants were the owners of said land adjoining and "below the said Pigford farm"; that a portion of his land was ditched, cleared and under cultivation and was subject to inundation and sog. It could not be drained except by clearing or cutting out a canal known as the Strawberry Canal, etc., which was cut through the defendant's land, etc., and (448) constitutes the only natural outlet to the waters of Pigford farm. The plaintiff prayed that commissioners be appointed pursuant to chapter 30 of the Code.
The defendants Armstrong and Mrs. Durham's answer, admitting the ownership of the land by the plaintiff and defendants, denies that the plaintiff's land is "swamp, flat and low land." They deny that the plaintiff's land is subject to inundation, and that it cannot be conveniently drained except in the manner pointed out by the petitioner. They also deny certain averments in regard to the use of the canal. They aver that the canal is not cut through their land; that it stops some distance before it reaches the plaintiff's land. They allege that the plaintiff has diverted his water and has violated certain contracts, and they say that the plaintiff "has been harassing these defendants with suit after suit in court, and the said suits have been appealed to the Supreme Court of North Carolina, and it has been decided more than once that the petitioner has no right to drain into the Strawberry Canal, and these defendants plead the same as an estoppel against the petitioner having any relief herein."
They further say that the petition is not filed in good faith and for the bona fide purposes as alleged in said petition, but for the purpose of obtaining for the petitioner the right to drain the Strawberry Canal water which the plaintiff has diverted from its natural course, and thereby injured the defendant, *326 and that the petition is filed for no other purpose than to harass and annoy the defendants, etc.; that the plaintiff has other means of draining his land than through the defendant's land.
When the cause came on for hearing upon the petition and answer, the defendants made a motion that the cause be sent to the Superior Court and placed upon the trial docket to (449) try the issues of fact raised by the answer. They also insisted that a plea in bar had been set up in the answer which was to be passed upon before any commissioners could be appointed. The clerk allowed the motion and transferred the cause to the civil issue docket of the court, and the plaintiff excepted and appealed to the judge.
At January Term, 1904, of the Superior Court, the judge presiding affirmed the judgment of the clerk, denied the plaintiff's motion that commissioners be appointed, and ordered certain issues to be submitted to the jury. The plaintiff excepted and appealed.
It is a source of regret and surprise that the procedure prescribed by the drainage laws (the first of which was enacted at the session of the General Assembly of 1795, chapter 436) should continue to be in doubt and uncertainty, resulting in delay and expense. The difficulty has doubtless arisen from the changes wrought in our judicial system and mode of procedure. The substantial features of the law have been retained in the several Codes of the statute law of the State. Chapter 40, Revised Statutes, was brought forward in the Revised Code; no change in the procedure was made until 1868. The original statute required the petition to be filed in the county court, and provided for the appointment of twelve jurors who were required to make their report to the county court, "which shall be recorded in said court." The construction of the act in regard to the power and duty of the court, and the right of the party dissatisfied to appeal, came before this Court in Collins v. Houghton,
This construction of the drainage act was uniformly followed by this Court prior to the change in our judicial system in 1868. Upon the filing of the petition the county court appointed the jury. They went upon the land, decided upon (451) personal inspection the necessity of the ditch, located it and assessed the damage to be paid by the petitioner. They made their report, and after the adoption of the amendment made by the Revised Code, ch. 140, the court "confirmed the report unless good cause be shown to the contrary." Stanly v. Watson,
In Skinner v. Nixon,
The defendant contends that the cases decided by the Court in regard to the right of the defendant to have a jury trial should not be followed, because the present Constitution expressly secures to him the right to trial by jury. We do not perceive any difference between the language of section 14 of the Declaration of Rights of 1776 and section 19 of our present Constitution. They are in identically the same words. It is true that the Court has held that controversies at law include all civil actions, "suits in equity" having been abolished by the Constitution. This principle has never been understood to extend (454) to proceedings "not according to the course of the common law" or to summary statutory proceedings.
Guided by the principles and procedure which we think correspond to the provisions of the statute and the decisions of this Court, we proceed to consider the defendant's answer to ascertain whether any issues of fact are raised which must be determined by a jury at a regular term of the court. Referring to matters set up in the answer in Durden v. Simmons, supra, of a character similar to much of the answer in this case, Smith, C. J., says: "We give all the effect to which the answer is fairly entitled in construing it as a denial of the relations between *330 the lands and the necessity and propriety of burdening the one for the other, and this under the statute is the appropriate function of the commissioners from the words of the act." We gather from this language that the allegations regarding the necessity for the ditches to drain the plaintiff's land were proper to be submitted to the commissioners when appointed, and was the basis for issues to be tried by a jury.
In Winslow v. Winslow,
The third and fourth issues are directed to an alleged estoppel growing out of an agreement made by one Levin Lane, a former owner of the defendant's land, and one Berry, formerly owning the plaintiff's land; also a plea of res judicata based upon suits heard and determined between the parties. We are not quite sure that we correctly interpret the language of the answer in respect to these matters. If, as we understand, it is sought to estop the plaintiff by the agreement referred to, the terms and extent of the agreement should have been fully set forth. If it was a personal license to drain through the defendant's land it was not enforceable, and therefore could not work an estoppel to prosecute this petition. In regard to the suggestion that the matter set up in the petition is res judicata, we cannot see how, in the uncertainty of the reference to the alleged suits, an issue can be drawn. No reference is made to any particular suit. An estoppel which "shutteth a man's mouth to speak the truth" should be pleaded with certainty and particularity. 8 Enc., Pl. Pr., 11. The court should be able to see from the pleadings what facts are relied upon to work the estoppel. The defendant's counsel in their well-considered brief make no reference to this part of their answer. If the defendant desires to set up the estoppel as a plea in bar, it is within the power of the clerk, if he shall think it in furtherance of justice, to permit him to do so by way of amendment to his answer. *331
We do not find anything in the decisions of this Court, in the several cases which have come before us between the parties, which would estop the plaintiff from prosecuting his petition. Douglas.J., in Porter v. Armstrong,
We conclude upon the record that no plea in bar has been sufficiently pleaded; that the matters set up in the answer other than those relied upon for the plea are properly triable by the commissioners to be appointed by the clerk. We think the order of the court appealable under section 548 of the Code. It would be an idle and expensive thing to try this cause before a jury only to have the same questions submitted to the commissioners after verdict. It is one of the anomalies in the practical working of our laws that a statute passed more than a century since for the promotion of agriculture, the opening of swamp lands, and increasing the capacity of the earth to bring forth bread for the people, should be a subject of expensive litigation and almost hopeless delay. Without expressing any opinion in regard to the merits of this long-standing controversy, we are struck with the fact, as appears from the records of this Court, that for nearly thirty years the owners of these lands have been in litigation in regard to their drainage. We cannot but indulge the hope that when three disinterested, intelligent freeholders shall view the premises and find the facts both parties may find it consistent with their sense of justice and their own interests to abide the judgment.
Error.
DOUGLAS, J., dissents.
Cited: R. R. v. R. R.,
(457)