Gibbs v. Drainage Commissioners of Mattamuskeet District , 175 N.C. 5 ( 1917 )

Clark, O. J'.

Tbe original petition, sec. 5, contained’a provision that “tbe cost-of maintaining and keeping tbe proper drainage in effect shall not exceed 15 cents per acre for eacb acre included witbin tbe bounds of said district,” but this .provision was based upon tbe sanguine hopes of tbe petitioners and was omitted in all subsequent proceedings and is not embraced in tbe judgment creating tbe district nor referred to in any other proceedings subsequent to tbe petition. As is not unusual, tbe cost of constructing tbe drainage system and of maintenance bas exceeded the original estimate, especially since tbe great increase in tbe cost of labor and material. Doubtless tbe fact that original estimates often prove inadequate induced those whose intelligence and public spirit conceived this enterprise from incorporating such restriction in tbe judgment which is tbe charter of tbe drainage district. Exceptions were filed to tbe final report but none thereto, nor to tbe judgment, upon the ground that tbe restriction of assessments for maintenance to 15 cents per acre was not retained. Carter v. Comrs., 156 N. C., 183.

Tbe judgment creating tbe district decreed that it was “established under and in accordance with tbe provisions of cb. 442, Laws 1909, and ch. 509, Laws 1909.” Section 29 of tbe first-named statute gives to tbe commissioners of drainage districts, created under that act, power, without any other restriction therein than to make such assessments as “may be necessary to maintain” tbe district after its formation.

In January, 1911, tbe State Board of Education conveyed to tbe Southern Land Reclamation Company, a corporation, tbe lands owned by said board and embraced witbin said drainage district, containing 48,830 acres, and in tbe conveyance it is specified that tbe conveyance carries all the rights, privileges and obligations of tbe State Board of Education under tbe special proceedings for tbe establishment of tbe “Mattamuskeet Drainage District” under cb. 509, Laws 1909, “except tbe Southern Land Reclamation Company, its successors and assignees is to pay three-fourths of the cost of the maintenance as well as the construction of said drainage district.” This stipulation exempted the owners of lands outside of the lake bottom from the equality of assessment per acre according to benefit which would ordinarily lay upon them.

There are over 50,000 acres of lands owned by the other members of the drainage district which lie outside of that conveyed by the State as above. It follows, therefore, that whenever the drainage commissioners levy an assessment for drainage purposes three-fourths thereof must be levied upon the assignees of the State Board of Education, owners of 48,840 acres and one-fourth upon the 50,000 acres outside of the lake bottom, with the result that such outside lands will pay an assessment at a rate of slightly less than one-third of that levied upon the lake bottom lands. This should be sufficient protection for the plaintiffs against any abuse of assessment. It is not alleged herein that the assessment is levied in abuse of the power and discretion vested in the drainage commissioners of districts created under ch. 442, Laws 1909.

If there was any allegation sustained by proof, that the- assessment is in excess of what is necessary for maintenance, or in abuse of the powers conferred by ch. 409, Laws 1909, or that the levy was made arbitrarily, or from an improper motive to oppress any of the owners of the' lands lying outside of the lake district, an issue of fact would be raised for determination and upon sufficient proof the court would be justified in granting a restraining order to restrain the levy of such assessment, but even in such case the courts are always slow to enjoin pending such inquiry the prosecution of works affecting the public welfare, as this Court has often held.

The object of the injunction here sought is not to restrain the assessment of the tax for maintenance to prevent oppression to the plaintiffs (for 50 cents per acre per annum can not be oppressive to maintain the drainage of lands much of which will produce 80 to 100 bushels of corn per acre), but relying upon a recital in the petition or prospectus of the proceedings to restrict the taxation of the petitioners who are some of those owning lands outside of the district and thus throw vastly more than the burden, three times as much, which is now laid for the maintenance upon the owners of the lake bottom under the contract they agreed to in taking the conveyance of the State’s interest.

It is not alleged nor shown that the assessments are not in the proportion of one-fourth on those holding -lands outside of the lake bottom and three-fourths on the owners of the lake bottom, nor is it shown (though alleged) that the assessment is in excess of what is absolutely necessary for the maintenance of this great work.

Though there was an expression in the petition that “none of the lands in the district” should be assessed for maintenance more than 15 cents per acre, this was not followed up by any subsequent order in the cause nor by the decree establishing the district. Chapter 509, Laws 1909, provides that the State as owner of the lake bottom should pay only three times as much for establishing the drainage system as the owners of the lands in the rest of the district and should be liable for only three-fourths of the bond issue, but that after the district was established (sec. 4), “the cost of repairs and maintenance shall be borne equally by all the lands in said district.” The State Board of Education in its conveyance of the State’s interests, above set out, generously required that its assignee, the Southern Land Eeclamation Company, should pay three-fourths of the cost of maintenance also. This generosity is ignored and repudiated by the plaintiffs who seek to keep down their assessments for maintenance to 15 cents per acre, which would require the assessments levied upon the owners of the lake bottom to become many times triple the assessment upon themselves.

If the assessment upon the lands of those outside the lake should be restricted to 15 cents per acre, according to the stipulated ratio, the assessment upon the lands in the lake bottom would be only 45 cents per acre, and the sum raised from the entire assessment would be totally inadequate for maintenance, and this would cause the destruction of the work of so much importance to the public and upon which $600,000 have already been spent.

The plaintiffs waived the limit of 15 cents per acre for maintenance by acquiescence in the final report and also in the final decree establishing the district without incorporating such restriction, and.by assenting to the issuance of $500,000 in drainage bonds, whose .holders, though not parties to this action, will have their rights seriously impaired if there is not a sufficient fund raised for maintenance from time to time. This fund may be less or greater at different times, depending upon the season and the conditions as to labor, and material, which will vary. The only restriction as to the apportionment of the maintenance is that the amount assessed shall be necessary and that three-fourths shall be paid, and not more, by.the owners of the lake bottom, the assignees of the State’s interests and the other one-fourth by the rest of the district.

The plaintiffs have shown no equity which entitled them to the restraining order which besides seeks to disregard the ratio created by the decree establishing the district and the statutes chs. 442 and 509, Laws 1909.

Eeversed.