Forehand v. . Taylor

CiARK, C. J. Tbis is an action which, was begun before a justice of the peace, under Revisal, sec. 3995, which is in chapter 88, providing for the establishment of drainage districts, and in subchapter 2 thereof. Said section 3995 provides: “JIow amount of contribution for repair-.ascertained. . "Whenever there shall be a dam, canal, or ditch, in the repairing or keeping-up of which two or more persons shall be interested and receive actual benefit therefrom, and the duties and proportion of labor which each one ought to do and perform therefor shall not be fixed by agreement, or by the mode already in this chapter provided for assessing and apportioning such labor, any of the parties may have the same assessed and apportioned by applying to a justice of the peace, who shall give all parties at least three days’ notice, and shall summon two disinterested freeholders, who, together with the justice, shall meet on the premises and assess the damages sustained by the applicant, whereupon the justice shall enter judgment in favor of the applicant for damages or for work done on such ditch or lands. The cost of this proceeding shall be in the discretion of the justice.” In the summer of 1910 the plaintiffs did certain work repairing and cleaning out a canal which runs by certain land of the defendant, who owns on one side of the canal only, and "also runs through the lands of others in the vicinity. The jury finds that the defendant, together with others, was interested in repairing the canal in question, and received actual benefit therefrom. The adjoining landowners paid their proportional part for repairing and cleaning out the canal. The defendant refused to pay the amount claimed of him, upon the ground that he had not been benefited that much. Thereujmn, in September, 1910, the plaintiffs warranted the defendant before a justice of the peace for the nonpayment of $82 for his share of the cost of cleaning out and repairing the canal, alleging defendant’s lia *355 bility, botb upon contract and on a quantum meruit. Tbe magistrate dismissed tbe action, doubtless on tbe ground tbat there bad been no agreement shown and tbat plaintiffs could not recover on quantum meruit because of plaintiffs’, failure to comply with tbe prerequisite required by Eevisal, sec. 3995, tbe cost not having been assessed by a justice of tbe peace and two freeholders. Subsequently, in November, 1910, tbe plaintiffs complied with tbe requirements of said section 3995 by applying to a justice of tbe peace, who, after summoning two disinterested freeholders and tbe defendant being present, viewed tbe canal and decided tbat tbe plaintiff was entitled to $82 for damages, which they assessed. Tbe defendant appealed to tbe Superior Court. In tbat court tbe jury found tbat tbe defendant was interested in tbe repair of tbe canal and was indebted to tbe plaintiffs for $82 for bis proportional part of tbe cost. Tbe defendant appealed to this Court and makes two assignments of error: 1. For tbe refusal of tbe court to nonsuit on tbe ground tbat Eevisal, sec. 3995, is unconstitutional. He cites no authorities to support bis position. Tbe Drainage Act has been held constitutional in several cases. Staton v. Staton, 148 N. C., 490; Adams v. Joyner, 147 N. C., 77; Norfleet v. Cromwell, 70 N. C., 634; Sanderlin v. Luken, 152 N. C., 738; White v. Lane, 153 N. C., 14. 2. Tbe second exception is tbat tbe plaintiff was estopped by tbe judgment in tbe former action. But it appears from tbe facts stated tbat at tbe time of tbe former action tbe plaintiff bad not taken tbe steps required by'Eevisal, sec. 3995, to entitle him to recover under tbe Drainage Act. It was only thereafter, in November, tbat be applied to tbe justice and bad two disinterested freeholders appointed, who, after giving him notice, met on tbe premises and, with tbe justice, assessed tbe damage. When tbe former action before tbe justice was brought, tbe plaintiff was therefore not entitled to recover. His action was premature, and tbe justice properly dismissed it. There is therefore no estoppel. Capeheart v. Tyler, 125 N. C., 64, and cases citing tbe same in tbe Anno. Ed. *356 It is not distinctly stated, as it should be, that this canal bad been laid out and dug under the Drainage Act, but both briefs treat it as such, and the whole proceeding is taken under Revisal, sec. 3995, concerning the apportionment of repairs of a canal of that kind. No error.