Lumber Co. v. . Drainage Commissioners , 174 N.C. 647 ( 1917 )

On motion by defendants, made in apt time, there was judgment as of nonsuit, and plaintiff excepted and appealed. A perusal of the record will disclose that the drainage district in question has been duly and regularly established, pursuant to the provisions of the statute applicable (chapter 442, Laws, 1909; chapter 67, Laws 1911); that the plaintiffs and all others owning lands or timber interests within the defined area have been duly notified, both of the hearing on the intermediate and final reports; that plaintiff company not only had actual notice, but attended the hearings, certainly the final one, and filed exceptions to the report, insisting on a reduction of the amount assessed against it, and also on the invalidity of the statutes as being violations of the constitutional provisions, both State and Federal, established in protection of the rights of private property; that the exception as to amount was in part sustained, a reduction being ordered, and those as to unconstitutionality of the statute having been overruled and final judgment entered, plaintiff appealed and failed to prosecute the same, thus acquiescing in the final judgment as properly determinative of the rights of the parties in the premises. On this record, the Court is of opinion that such judgment is conclusive of the questions presented, and that the judgment of nonsuit should be sustained.

We have held in numerous cases that these drainage acts (649) are constitutional; and plaintiff having been duly made a party and afforded full and fair opportunity to appear before a court with power to ascertain and determine any and all matters affecting its proprietary interests, the judgment referred to is an estoppel of record against it, and it is no longer open to plaintiff to further litigate the questions presented. Drainage Commissionersv. Mitchell, 170 N.C. 324; Griffin v. Commissioners, 169 N.C. 642;Shelton v. White, 163 N.C. 90; Newby v. Drainage District,163 N.C. 24; Sanderlin v. Luken, 152 N.C. 738; City of Kinston v.Loftin, 149 N.C. 255; Davidson v. New Orleans, 96 U.S. 104.

It is urged for the plaintiff that, while the judgment may conclude as to any and all damages caused to plaintiff's land situate within the drainage district, no such effect should be allowed as to its timber interests; such interests, under the recent decision of Dover Lumber Co. v.Drainage District not being involved in the proceedings.

It is the recognized principle that, in order to a full estoppel, the court should have jurisdiction of the subject-matter (Hobgood v. Hobgood,169 N.C. 485), but we do not think the position is open to plaintiff on this record, or that any such effect follows from the decision referred to. In that case it was held that, under the drainage acts, no assessments for benefits could be properly made against the owners of timber interests alone; the statute in terms clearly contemplating that only the land was liable; but it was not at all held that when one owning both land and timber interests within the prescribed area had been made a party and duly notified, he was not required to present a claim for the entire injury suffered. The language of the statute on this subject is — "It shall be the duty of the engineer and viewers to assess the damages claimed by any one that is justly right and due them for land taken, or for inconvenience imposed because of the construction of the improvement, or for any other legal damages sustained. Such damages shall be considered separate and apart from any benefit the land would receive because of the proposed work" — language that is broad enough and clearly intended to include the claim for any and all damages sustained by any party by reason of the proposed canal, certainly to the extent that it was properly constructed and in accord with the plan that had been surveyed and described in the map, etc.

In support of plaintiff's position that the statute is in violation of the company's constitutional rights, it is suggested that plaintiff is required to make its claim for damages before injury is inflicted, and when there is no sufficient means of enabling a jury of view to make any correct estimate of the amount, but, to our minds, the objection is not well taken. Before any final award is made against the claimant or his property, the act provides that a careful survey of the proposed principal canal and all lateral branches (650) shall be made, and that a full and accurate map of the same shall be prepared and in evidence, showing the plans of the entire district, the route and width of the canal and all its branches, the differing levels of the various points, the bottom and grade of the proposed improvements, the total yards of excavation, with the estimated cost, and the plans and specifications, and the costs of any other work required to be done. These requirements were complied with in the present instance. An accurate map was present at the different hearings, accessible to plaintiff or its agents, and it seems that the managers of plaintiff had a special copy made for the company. It appears, therefore, that ample data are afforded by which any intelligent jury of view could make a fair and full estimate of plaintiff's damage. And the further objection that section 24 of the statute is invalid because it gives the claimant's timber to the contractor without compensation must also be disallowed. Any and all damages done to an owner's land must be awarded him, including the amount of timber destroyed or that is to be considered in estimating the damages; and this section (24) is designed to extend to the owner the privilege of taking the timber if he so elects. It is conserving to the owner, to that extent, the right to take the timber which would otherwise be taken from him in the legitimate exercise of the powers of eminent domain, recognized and conferred by the statute. It is further contended that the judgment of nonsuit is erroneous because plaintiff company in any event is entitled to recover for the damages caused by defendant's negligence in constructing the canal. It may be, and the authorities seem to hold, that for appreciable damages caused by such negligence, and which the owner could not avoid by reasonable effort on his own part, a recovery might be had, the damages being awarded in the first instance on the theory that the work will be carefully done and in accordance with the plans and specifications. Duvall v. R. R., 161 N.C. 448;Wood v. Land Co., 165 N.C. 367; Quantz v. Concord, 150 N.C. 539;Meares v. Wilmington, 31 N.C. 73. But there are no facts presented which would uphold any such position. All the actual damages caused by the work, either in appropriation of right of way, the destruction of timber thereon, etc., are or should have been included in the damages awarded pursuant to the statute, and there are no facts in evidence to justify any recovery beyond this. The evidence on behalf of plaintiff to the effect that in the opinion of the witness it was possible to have cut the trees so that same should have fallen on the right of way and so caused no injury whatever to the adjacent property, is entirely too indefinite and uncertain to be made the basis of a recovery, or to justify a reversal of the order of nonsuit. It is of manifest and supreme importance that our extensive lowlands should be reclaimed and added to the productive resources of (651) the State, and in accord with an enlightened public policy that those who engage in the effort pursuant to the provisions of laws enacted for the purpose should be encouraged. The act itself says, in section 37, that it shall be liberally construed in promotion of their efforts, and it would be contrary to the terms and spirit of the laws and in violation of just principles to hold that a right of action should arise to a claimant because a few trees which might possibly have been felled on the right of way happened to fall on the adjacent lands, and assuredly on this record no actionable negligence has been shown.

The exceptions to the rulings of the court on questions of evidence are without merit. There was no serious question but that the drainage proceedings were complete and in all respects regular, and we think the evidence as to loss of original was sufficient to permit secondary evidence of their contents. Apart from this, the case on appeal seems to show that the portion of the original more directly relevant was later put in evidence by defendants. There is no error, and the judgment of nonsuit must be affirmed.

Affirmed.

Cited: Spencer v. Wills, 179 N.C. 178; Ingram v. Hickory, 191 N.C. 53;O'Neal v. Mann, 193 N.C. 157; Drainage Comrs. v. Jarvis, 211 N.C. 692;Newton v. Chason, 225 N.C. 207.