Staton v. . Staton

Olakk, C. J. Tbe plaintiff herein instituted a proceeding in 1885, under tbe Drainage Act (now Revisal, cb. 88), for the right to drain into Barnes Canal. Commissioners were appointed, tbe rights and duties of tbe several parties determined and tbe amount each should pay assessed. Tbe report was confirmed 30 January, 1886. This is a subsidiary proceeding begun in tbe Clerk’s court, which sets out that repairs to tbe canal are needed, that some of tbe tracts have changed bands and that one tract in particular has been *491 partitioned, and asking that the amount assessed against that tract be divided and assessed in proper proportions against each of the partitioners. This is in effect a motion in the cause. From the nature of the proceeding, the judgment in 1886 is not a final judgment, conclusive of the rights of the parties for all time, as in a litigated matter. But it is a proceeding in rem, which can be brought forward from time to time, upon notice to all the parties to be affected, for orders in the cause, dividing (as here sought) the amount to be paid by each of the new tracts into which a former tract has been divided by partition or by sale; to amend the assessments, when for any cause the amount previously assessed should be increased or diminished, for repairs; for enlarging and deepening the canal or for other purposes, or to extend the canal and bring in other parties. It is a flexible proceeding, and to be modified and moulded by decrees from time to time to promote the objects of the proceeding. The whole matter remains in the control of the court. It is not necessary, however, to keep such cases on the docket, but they can be brought forward from time to time, upon notice to the parties, upon supplementary petition filed therein, and further decrees made to conform to the exigencies and changes which may arise. There is no uncertainty in not restating in this petition the termini of the canal. That sufficiently appears in the original proceeding, and if it did not the petitioner should be allowed to amend. Porter v. Armstrong, 134 N. C., 449; s. c., 138 N. C., 179. These proceedings are not highly technical, but-are intended to be inexpensive and to be moulded from time to time, by the orders of the court, as may best promote the beneficial results contemplated by the statute. The judgment dismissing the proceeding is Reversed.