Sawyer Canal Co. v. Keys

'WiNBORNE, J. The question presented on this appeal, as stated in brief of appellant, is this: “Did the court below properly interpret the former decision in this case reported in 232 N.C. Reports at page 664, and did the court below have authority and jurisdiction to enter judgment without following the directions of this Court in said former decision when the cause was remanded for the ascertainment of certain facts?” The answer is “Yes.” I. On the former appeal the record revealed that in the proceeding before the clerk of Superior Court, and in the Superior Court on appeal thereto, and on appeal to this Court, defendant relied, in the main, upon the provisions of G-.S. 156-51 as a bar to petitioners’ right to maintain this proceeding, — contending that the only remedy available to them against defendants’ failure or refusal to share with them the burden of maintaining and repairing the drainage was to obstruct and dam up her canal so as to effectually prevent drainage therefrom into their canal. [363] The judge of Superior Court held witb defendant, reversed the order of the clerk confirming report of commissioners, and adjitdged that petitioners take nothing by the proceeding. But this Court held that the statute G.S. 156-51 is inapplicable to the factual situation in hand. II. Also on the former appeal it was made to appear from the reply of petitioners to the answer of defendant and the supplemental report of the commissioners that in the year 1928 Joseph Keys, predecessor in title of defendant, constructed, and cut into the Sawyer Canal, a large canal, several miles in length, 20 feet wide and 6 feet deep, for the purpose of draining his land, known as the Iludnell land, and other lands owned by him; and that the canal, called the Keys Canal, diverted and turned into petitioners’ drainage large volumes of water that had not theretofore flowed therein. And that the commissioners, appointed in the present proceeding, found that the land of defendant has been greatly benefited by the recent improvements of plaintiffs’ drainways and should bear a reasonable and proportionate part of the expenses of enlarging the outlets of said drainways, and that they also found in what proportion and amount the lands of defendant are benefited. In this connection, the former opinion called attention to, and reviewed in part provisions of sub-chapter 1 of Chapter 156 of the General Statutes of North Carolina entitled “Drainage by Individual Owners,” which, among other provisions, grants to “any person desirous of draining into the canal or ditch of another person as an outlet,” the privilege of cutting into and draining through such canal or ditch, and prescribes the procedure for acquiring such privilege, and for assessing damages against the petitioner for the privilege, and for apportioning the labor which the petitioner and defendants therein shall severally contribute towards repairing the canal or ditch into which or through which the petitioner drains water from his land. It is then stated in the former opinion: “In the light of these provisions, it may be assumed that, since there was litigation in respect thereto, Joseph Keys, the predecessor in title of defendant, in exercising the right to cut into the canals of plaintiffs, did so under, and pursuant to the provisions of the statute granting such right — G.S. 156-10. And if Joseph Keys did not initiate such proceeding, it may be assumed that the assessment of damages in the litigation to which reference is made in the record was made under the provisions of the statute.” The former opinion then went on to say: “Nevertheless, the record and case on appeal fail to show the proceeding, or report of commissioners, or that commissioners assessed and apportioned the labor which he, the said Joseph Keys, should contribute towards repairing the canal into or through which he drained the water from his land. Hence it seems expedient that the cause be remanded for the ascertainment of the facts [364] in these respects. And if it should appear either that in the proceedings had no commissioners were appointed in accordance with the statute, or that commissioners were appointed and failed to assess and apportion the labor which Joseph Keys should contribute, as aforesaid, the petition filed by the petitioners in the proceeding in hand may be considered a motion in the cause, — and the rights of the parties determined in accordance with law and justice.” It now appears as a fact found by the court that, though Joseph Keys, defendant’s predecessor in title, during the summer or fall of 1928, did construct a large canal several miles in length, 20 feet wide and 6 feet deep, for the purpose of draining his land, the Hudnell land, and other lands owned by him, and did cut the canal, so constructed by him, into the Sawyer Canal, petitioners’ named drainway, thereby diverting and turning into petitioners’ drainway large volumes of water that had never theretofore flowed therein, there was no proceeding in court by which Joseph Keys acquired the right to do so. Hence the direction in the former opinion that the facts in respect to such a proceeding be ascertained came to nought. The proceeding then reverted to consideration of defendant’s exceptions to the judgment of the clerk confirming the report and supplemental report of the commissioners, — petitioners having moved for confirmation of the clerk’s judgment. The judgment from which this appeal is taken followed. In this connection, this Court declared in Staton v. Staton, 148 N.C. 490, 62 S.E. 596, referring to a proceeding similar to that in hand, that “these proceedings are not highly technical, but are intended to be inexpensive and to be moulded from time to time, by the orders of the court, as may best promote the beneficial results contemplated by the statute.” And it is observed that in Adams v. Joyner, 147 N.C. 77, 60 S.E. 725, it is said: “While the several statutes, passed at different times, to provide for the drainage of the swamp lands of Eastern North Carolina have not in all respects the same provisions, they have been collected and are found in the Revisal of 1905, in Chapter 88. They should, as far as practicable, be so construed as to harmonize, and constitute with such variations as they contain, a system of drainage laws for the State. Their constitutionality has been settled by several decisions of this Court.” The statutes comprising Chapter 88 of the Revisal of 1905, are now embodied in Chapter 156 of the General Statutes of North Carolina. Moreover, in Staton v. Staton, supra, the Court had this further to say: “This is in effect a motion in the cause. From the nature of the proceeding, the judgment in 1886 is 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, [365] upon notice to all the parties to be affected, for orders in the cause, dividing (as here sought) the amount to be paid by each of the new tracts into which the 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 or deepening the canal or for other purposes, or to extend the' canal and bring in other parties. It is a flexible proceeding, and to be modified or moulded by decrees from time to time to promote the objects of the proceeding. The whole matter remains in the control of the court. It is not necessary, however, to keep such cases on the docket, but they can be brought forward from time to time, upon notice to the parties, upon supplementary petition filed therein, and further decrees made to conform to the exigencies and changes which may arise.” In the light of the provisions of the Drainage Statute, Chapter 156 of General Statutes, so interpreted by this Court, applied to the factual situation in hand, it would seem that, in accordance with law and justice, the judgment from which this appeal is taken is “right in substance.” Taylor, C. J., in Lanier v. Stone, 8 N.C. 329. Affirmed.