Virginia-Carolina Farms Co. v. Board of Drainage Commissioners , 178 N.C. 661 ( 1919 )

Pee Cueiam.

There are three questions presented in this appeal:

1. Is the board of drainage commissioners of Carteret County Drainage District No. 1 authorized and required to reimburse plaintiff for the moneys advanced and work done by plaintiff ($62,645.37), and to levy and collect assessments on the lands in said district to that end? Or does the fact that compensation was not claimed by plaintiff for existing canals and drainways, etc., and that damages were not assessed therefor, under section 11 of the Act of 1909, with subsequent confirmation of the final report of the viewers, estop plaintiff as res judicata?

2. ■'Will the delivery of bonds to the amount of $62,645.37, par value, .to plaintiff, for such purpose, out of a total issue of $330,000 of drainage bonds, in any way affect or prejudice the validity of said issue, or of any of the bonds of said issue ?

3. Will the bonds of the district, to the full amount of $330,000 issued as proposed, constitute a first and paramount lien on all the lands within the district, subject only to State and county taxes (as provided by the North Carolina Drainage Law), notwithstanding that bondholders, mortgagees, or trustees, relying upon liens subsisting, prior to the issuance of said bonds, are not made parties to the proceedings ?

We are of opinion that each one of these questions has been correctly decided by his Honor in his judgment in this case, and that they need no further discussion on our part. A reference to the authorities is sufficient. Sanderlin v. Lukens, 152 N. C., 738; Newby v. Drainage Dist., 163 N. C., 24; Shelton v. White, 163 N. C., 90; In re Big Cold Water D. D., 162 N. C., 127; Banks v. Lane, 170 N. C., 14; Banks v. Lane, 171 N. C., 505; Comrs. v. Webb, 160 N. C., 594.

The drainage law expressly provides for preliminary investigations, and for the employment and payment of engineers. Laws 1909, ch. 442, sec. 2; Laws 1911, ch. 67, sec. 1; Laws 1917, ch. 152.

It is provided expressly that “after the district shall have been established, and the board of drainage commissioners appointed, it shall be the duty of the board of drainage commissioners to refund to each of the petitioners the amount so paid by them as above provided, out of the first moneys which shall come into the hands of said board from the sale of bonds or otherwise, and the same shall be included in ascertaining the total cost of improvement.

The fact that when damages were assessed by the engineer and viewers under section 11, chapter 442, Act 1909, the plaintiff made no claim, and that no damages were assessed by way of compensation for the ditches and canals constructed by the plaintiff, does not estop the plaintiff from now presenting the claim for such compensation. The viewers themselves recommended in tbeir final report that this work be availed of by the district, and that compensation therefor be made to the plaintiff. This final report of the viewers was confirmed by the court. It follows, necessarily, that if this recommendation was incorporated in the final report, and this final report was confirmed by the court, plaintiff’s right to compensation for these ditches was determined by the court, and defendant’s duty and authority to pay such compensation was decreed.

As declared by Mr. Justice Hoke in Griffin v. Comrs., 169 N. C., 646: “This final report of the board of viewers is the controlling chart by which the drainage commissioners are to be guided in constructing the work and making out the assessment rolls under the law.”

That the bonds, when issued, constituted a first and paramount lien on all the lands within the district, subject only to State and county taxes, has been held by this Court in Banks v. Lane, 170 N. C., 14; Drainage Comrs. v. Farm Asso., 165 N. C., 697. Fitzpatrick v. Botheras (Iowa), 25 Ann. Cas., 534, notes p. 536; Morey Eng. and C. Co. v. St. L. A. I. R. Co., 28 Ann. Cas., 1200, notes 1210.

Affirmed.