Winslow v. . Winslow

MerrimoN, J. (after stating the facts). No question is made as to the regularity and propriety of submitting to the jury the issues set forth in the record, and we advert to them only for the purpose of saying that it may be questionable whether it is proper to submit such as they are. Darden v. Simmons, 84 N. C., 555. The first exception cannot be sustained, because granting in this case, that the third and fourth issues were properly submitted to the jury, it does not follow from their finding that no laud was necessary for the protection and reparation of the ditches. The Court did not think so, and hence made an order that new commissioners be appointed to view the lands, and make further report. The statute, (The Code, §1302,) expressly provides, that the commissioners may designate the width of land on each side ' of such ditches, necessary for such purposes. It may be, that the new commissioners will designate the same in a less width of land, or none at all. They are made the judges of the necessity and its extent. Nor can the second exception be sustained. It is true, that the property of the defendants cannot be taken simply for the private use of the plaintiff, nor is it proposed to do this in contemplation of law. It is well settled, that the statute that authorizes this and like proceedings,-and providing for the drainage of low and swamp lands, does not conflict with the Constitution. The Legislature, in the exercise of the police powers of government, had authority to enact it, with a view to the promotion of the general welfare, and the mere fact that one or more individuals may derive from it peculiar and particular benefits and advantages, does not destroy in effect its validity. This is so well settled that we need not now add to a discussion already replete. Norfleet v. *28 Cromwell, 70 N. C., 634; Brown v. Keener, 74 N. C., 714; Pool v. Trexler, 76 N. C., 297. For the reasons already stated, the Court properly refused to give judgment, as prayed for by the defendants, that the plaintiff “ be entitled to the ditches, but to no other relief.” The judgment must be affirmed, and to that end let this opinion be certified to the Superior Court as the law directs. No error. Affirmed.