In Re Incorporation of Westover Canal

Appeal by Westover CaNal, INCORPORATED. WiNborhe, J. This appeal challenges the ruling of the trial judge that Westover Canal, Incorporated, has the burden of proof on the issues submitted to the jury. This presents the determinative question. A reading of the statute, G.S. 156-43, in the light of applicable principles of law negatives the challenge, and furnishes authority for the ruling. The general rule is well settled that a special assessment for the purpose of drainage can be levied only upon property benefited by the improvement. It is .said that the legal theory underlying drainage assessments is one of benefit increasing the value of the land and justifying its assessment. 28 C.J.S. 409, Drainage, Sec. 59. Where it clearly appears that the canal will neither drain a particular tract of land nor render it more accessible, there is no valid reason for including it in the district, and if it is nevertheless arbitrarily made a part thereof, the owner may obtain relief. 11 Am. Jur. 791, Drains & Sewers, Sec. 20. Indeed, the statute, G.S. 156-43, under which this proceeding is instituted, requires that the petition shall set forth “the name of the owners of land draining in such canal and the quantity of land tributary thereto,” and. that “assessments shall be made on the land tributary to the canal.” The word tributary, as defined by Webster, means “a stream feeding a larger stream.” Hence as here used the phrases “land tributary thereto” and “land tributary to the canal” mean land from which water drains or flows into the canal. And the statutory provisions determine the prop *95 erty liable to drainage assessment. Hence to constitute a valid assessment the particular land against which it is levied must come within the meaning of the statute. And the statute gives to any person dissatisfied with an assessment the right to appeal to a jury at a regular term of the Superior Court of the county. In such event, it would seem that the authority undertaking to establish the assessment would still have the burden of proving the provisions of the statute essential to the creation of a valid assessment. It may he that the order of the Clerk of Superior Court approving and confirming the assessment as proposed by the commissioners and the Board of Directors of the corporation creates a prima facie ease. But “a prima facie case, or prima facie evidence, does not change the burden of proof. It stands until its weight is met by evidence to the contrary. The opposing party, however, is not required as a matter of law to offer evidence in reply. He only takes the risk of an adverse verdict if he fail to do so . . . Hence, when such prima facie case is made out, the duty of going'forward with evidence in reply, if the opposing party would not hazard the chance of an adverse verdict, is shifted or rather cast upon the opposite side.” Speas v. Bank, 188 N.C. 524, 125 S.E. 398. See also Vance v. Guy, 224 N.C. 607, 31 S.E. 2d 766. Moreover, the order of developing the case on trial in Superior Court is a matter largely addressed to the discretion of the trial judge. D’Armour v. Hardware Co., 217 N.C. 568, 9 S.E. 2d 12. The ordinary rule in presenting the facts in evidence to the jury is for the plaintiff, or party having the burden of proof, to introduce his evidence, then for the defendant, or opposing party, to introduce his evidence, and then the plaintiff’s evidence in rebuttal. This is a rule of practice, and not a rule of law, and it may he departed from whenever the court considers it necessary to promote a fair trial. McIntosh N. C. P. & P. in Civil Cases, Sec. 564, p. 711. All assignments of error presented by Westover Canal, Incorporated, have been given due consideration, and, except as hereinabove set forth, require no treatment, and, on this appeal there is No error. Appeal op Mattie R. SwaiN : Mattie R. Swain, on her appeal, presents this question: “Is the assessment sought to be levied herein void ?” Since only parties aggrieved may appeal in eases prescribed by law, G.S. 1-271, this appeal must be dismissed. Appeal dismissed. On appeal of Westover Canal, Inc. — No error. On appeal of Mattie R. Swain — -Appeal dismissed.