#### SURRY PARKER et als. v. C. R. JOHNSON et als.

(Filed 24 September, 1913.)

Drainage Districts — Procedure.

In this proceeding to form a drainage district under tbe Laws of 1909, ch.- 442, no error is found on appeal, the ease being controlled by SheUon v. White, post, 90.

Appeal by plaintiff from Lane, J., at October Term, 1912, of WASHINGTON.

Van B. Martin, Biclcett & Galvert for plaintiffs.

A. 0. Gaylord,. A. B. MacLean, and H. 8. Ward for defendants.

Clark, O. J.

This is a proceeding under the general drainage law, 1909, ch. 442, to establish the “Oonabv Drainage District” *75in Washington County. Substantially the same points are presented that have been decided at this term in Shelton v. White, post, 90, and that ease is decisive of this.

The record sent up is confusing and the proceedings do not appear in regular order. The defendants were brought in by notice as required by section 2 of said act, and filed answers , denying that they would be “benefited by the improvement, and asking that their lands be not included” in the proposed district. This defense was overruled by the clerk, and the defendants excepted.

On the coming in of the final report the defendants again excepted under section 16, because “the cost of construction, together with the amount of damages assessed, would be greater than the resulting benefit that would accrue to their lands.” The clerk overruled these objections. Upon appeal to the Superior Court at term-time upon the issues of fact and law involved, as provided by Laws 1911, ch. 67, sec. 3, the jury found the above issue with the defendants, and the court thereupon rendered judgment that they should'be “excluded and eliminated” from said district, and enjoined the Conaby Creek Drainage District from issuing bonds for the construction of the canal chargeable upon the lands of the defendants.

The plaintiffs except on the ground that the judge should have passed upon the ruling of the clerk, and should not have submitted issues to the jury. In this, as we have already held in' Shelton v. White, post, 90, his Honor committed no error. Notwithstanding the finding of the jury, the judge might have affirmed the ruling of the clerk if the formation of the district required such action, the objectors recovering damages. But his .Honor adjudged otherwise and directed the exclusion of the objectors.

No error.