Forest v. Atlantic Coast Line Railroad

Allen, J. The statute under which this proceeding is instituted is necessary for the cultivation and improvement of lowlands, and should be construed to carry into effect its beneficent purposes, if practicable. *550 It provides: “After a canal bas been dug along any natural depression or waterway and maintained for seven years, it shall be prima facie evidence .of its necessity, and upon application to the clerk of the Superior Court of any landowner who contributed to digging and is interested in maintaining tbe same, it" shall be the duty of the clerk of the Superior Court to appoint and cause to be summoned three disinterested and discreet freeholders, who, after being duly sworn, shall go upon the lands drained or intended to be drained by said canal, and after carefully examining the same and hearing such testimony as may be introduced touching the question of cost of canal, the amount paid and the advantages and disadvantages to be shared by each of the parties to the action, shall make their report in writing to the clerk of the Superior Court, stating the facts and apportioning the cost of maintaining said canal among the parties to the action, and the cost of the action shall be divided in the same ratio; and their report when approved shall be properly registered by- the clerk. The collection of cost and proportion of work on the canal shall be as prescribed in this chapter.” The statute is found in a- chapter of the Revisal providing for drainage, and by reference to its various sections it will be seen that the term “ditch” and “canal” is used indiscriminately to designate an artificial drain. In the ordinary acceptation of the terms, both indicate a channel constructed for the purpose of conveying water, the only difference being that the word “canal” suggests a channel of larger dimensions than does the word “ditch,” but as defined by the authorities, a ditch may be natural or artificial (Black L. Dic., 381; Cyc., vol. 14, p. 552; Goldthwaite v. Bridgewater, 71 Mass., 64), while a canal is an artificial trench for confining water, to a defined channel (Black L. Dic., 166), or a ¡trench or excavation in the earth for conducting water and confining it to narrow limits. Cyc., vol. 14, p. 268; Bishop v. Seely, 18 Conn., 394. Tested in either way, by the ordinary use of words or by legal'definitions, the drain described in the petition, not being natural and being of considerable dimensions, is a canal, although called a ditch. *551 Nor does the statute require that all of the petitioners should have contributed to the original construction of the canal, and the reason for omitting this requirement is obvious. If such a provision had been inserted in the statute, its usefulness would have been largely destroyed, as a change in the ownership of the land, after the construction of a canal at great expense, would render it difficult, if not impossible, to maintain it. It directs the clerk, in plain language, to make the order appointing the commissioners upon the .application of “any landowner who contributed to digging and is interested in maintaining” the canal, and the verdict establishes the fact that 'at least one of the petitioners “contributed” and is “interested” in maintenance. What has been said disposes of the first contention made separately by the defendants Tucker and House, ánd their second contention affects only the amount of the assessment for which they may be liable, which is not before us on this appeal. The separate contention of the defendant railroad is also untenable. The statute requires the assessments to be made according to advantages and disadvantages, and the verdict finds that the railroad is benefited by the drainage of its right of way, and it is reasonable and just that it should contribute in proportion to its benefits. Nothing is more important to the maintenance of its roadbed than proper drainage, and it should not expect this to be maintained at the expense of others. If, however, the statute in express terms said that only owners of land should contribute to the maintenance of .the canal, this would not necessarily relieve this defendant, as the term “owner of land” may not only include those who have an absolute ownership in fee, but those who have the proprietorship and control of the land. Cyc., vol. 29, p. 1549. Upon an examination of the whole record, we find No error.