In Re Lyon Swamp Drainage District

Clark, C. J. In Adams v. Joyner, 147 N. C., 77, almost the identical question was presented and decided. The defendant there contended that the formation of the district had been settled in a drainage proceeding in 1891, and pleaded estoppel and res judicata. The Court, however, held against this contention and the point came fairly before the Court in Staton v. Staton, 148 N. C., 490. The Court held that.the judgment which had been entered in 1886 was “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, ujion notice to all the parties 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 jn’oceeding, and to be modified and molded by decrees from time to time to promote the objects of the proceeding. The whole matter remains in control of the court.” We think this expresses the intention of the statute. Subsequent events, such as the silting up of a canal, or washouts by reason of torrential rains, or other causes, may cause a necessity for some changes in the plans originally adopted, or experience may point out unforeseen defects, and for this and other causes the corporate body itself can make proper changes in its plans, or they can be ordered upon supplementary petition before the clerk, subject, however, in both cases to the rule that there can be no radical change made in the plan marked out in the original proceedings, or any that will be a detriment to the rights of the bondholders or to the other proprietors within said district. In Gibbs v. Drainage Comrs., ante, 5, this Court approved the action of the drainage commissioners in raising the assessment for maintenance which was made necessary by changed conditions. In this case it has been proven by experience that the dropping off from the original plan of the extension of the canal as now proposed has made the drainage district an injury, not a benefit, to the petitioners, and has caused stagnant water to be ponded upon their lands to the detriment of cultivation and the impairment of the health of the community, and the board of viewers were directed to lay out and report the location and cost of the proposed extension, which, if approved by the court, shall be made at the sole cost of the petitioners. *273 In Adams v. Joyner, 147 N. C., 83, tbe Court, discussing the right of the court to make orders from time to time in the regulation of drainage matters by reason of changed conditions, says: “The purpose of the statutes is the promotion of agriculture, the increase of food for the people. They should be so construed and so administered that this purpose be accomplished.” In Staton v. Staton, supra, the Court, after holding that it is not necessary to keep such cases on the docket, says: “The proceedings are not highly technical, but are intended to be inexpensive and to be molded from time to time by the orders of the court as may best promote the beneficial results contemplated by the statute.” The eases cited by the counsel for the appellants are all where an attack was made upon the formation of the district, or to enjoin the collection of taxes, or to withdraw lands from the district. In Griffin v. Comrs., 169 N. C., 643, relied on by appellants, the Court declined to enjoin the collection of taxes because the right to object not having been taken at the proper time, it had been waived, but says that the plaintiffs might proceed against the drainage commissioners as to other matters. It was intended that these proceedings should be flexible and subject to modification from time'to time by the action of the landowners in the district or by the supervisory orders of the courts, subject, however, to the restriction that there should be no material change or any change that would throw additional costs upon the other landowners except to the extent of benefit to them. In this case, it was found as a fact by the clerk, and the finding was approved by the judge, that the extension asked for will be a benefit to the canal already dug, and will benefit some of the owners of the lands below the Toilers line as well as those above that line while the expense shall be borne entirely by the petitioners above that line. Upon the findings-of fact, we think that the order appointing “viewers” and directing them to make a report of their action, subject to the approval of the court, was properly granted. Affirmed.