Cox v. Albemarle Drainage District

Clarkson, J. The defendant, J. L. Roper Lumber Company, made a motion in the court below for judgment as in case of nonsuit, which was allowed. O. S., 561. Upon the record we think this was correct. The plaintiffs then submitted to judgment as in case of nonsuit against *267 tbe Albemarle Drainage District, on'the ground that if a judgment could be obtained it would be uncollectible on account of insolvency. The land of the plaintiff, Louisa Cox, is in the Pantego Drainage District. She is bound by the decree made in the proceeding establishing the Pantego Drainage District. It appears that the J. L. Roper Lumber Company has constructed the intercepting canal some twelve miles, and the Pantego Drainage District its canals, both in accordance with the decree. Under the terms of the decree J. L. Roper Lumber Company contracted, at its own proper cost and expense, to “hereafter maintain the canal or intercepting ditch.” It is provided in the decree “if at any time the said intercepting canal shall, through failure or default of the said J. L. Roper Lumber Company to maintain the same, become so impaired or obstructed as to lessen or diminish its carrying capacity by 25% or more, then the commissioners of said drainage district shall give certain written notice to J. L. Roper Lumber Company to perform its agreement and, upon failure, the drainage commissioners shall do so and recover the cost in making the repairs. The evidence on the part of plaintiff is plenary as to her land being soured, sobbed and flooded, and crops destroyed, but she is bound by the decree. If for any cause the intercepting canal becomes so impaired or obstructed as to lessen or diminish its carrying capacity by 25% or more, since its construction under the decree, it is the duty of the drainage commissioners to take prompt action and protect plaintiff’s land from future damage. If the intercepting canal’s carrying capacity is increased 25% or more since its original construction by other canals emptying into it, the obligation is on the J. L. Roper Lumber Company to fulfill its agreement, and dig it deeper and wider, or otherwise comply with its contract so as to relieve this additional burden. The Pantego Drainage District is not bound by any agreement made by J. L. Roper Lumber Company, and the Albe-marle Drainage District or any other corporation, person or persons to “appropriate” the intercepting canal for its or their use so as to diminish the carrying capacity of the intercepting canal 25% or more. In Distributing Co. v. Carraway, 189 N. C., p. 423, it is said: “The judgment before us being a 'consent judgment,’ is to be construed as if the parties had entered into a written contract, duly signed and delivered, embodying therein the terms of said judgment.., Bunn v. Braswell, 139 N. C., 135,” citing authorities. Bank v. Mitchell, 191 N. C., 190; Lentz v. Lentz, 194 N. C., 673. For the reason given, the judgment of the court below is Affirmed.