#### J. W. GRIFFIN et als. v. BOARD OF COMMISSIONERS OF MOSELEY CREEK DRAINAGE DISTRICT.

(Filed 13 October, 1915.)

1. Drainage Districts — Interpretation of Statutes — Water and Water-Courses —Deports of Viewers — Conformity—Drainage Commissioners.

Where a drainage district has been laid out in accordance with the requirements of the Drainage Act, and the final report has been filed and recorded, provision is made for the selection of a board of drainage commissioners, etc., who are charged with the duties of carrying out, substantially, the plans and specifications of the report as recorded, their powers being largely ministerial in character, to make out the assessment rolls constituting a lien on the property, as in case of tax lists, ob*643serving the classifications and ratio of assessments determined upon by the board of viewers; and the modification made by section 4 of the act contemplates only such minor charges of detail as may occur in carrying out the plans, etc., specified in the final report, and not a substantial departure therefrom.

2. Same — Courts—Rights of Landowners — Laches.

The courts, in proper instances, have the power to interfere and stay amounts assessed against the owner of lands within an established drainage district, when it appears that the commissioners, in carrying out the ministerial duties imposed on them, endeavor to collect from him a sum in excess of their own assessment, or that they had made out these rolls in utter disregard to the classifications and ratio of assessments established by the final report, or they had made such changes in the plans and specifications thereof as to exceed their powers and work substantial wrong and hardship upon a landowner, if he is not guilty of laches and has not unduly delayed asserting his rights.

3. Drainage Districts — Interpretation of Statutes — Reports—Objections— Landowners — Expectations.

Where a drainage district has been duly laid off in conformity with the statute, and a landowner therein has not excepted to either the preliminary or final report, he may not after the appointment of the commissioners, be heard to complain that the benefits he is to receive are not as great as those he had contemplated.

4. Same — Bond Issues — Injunction—Rights Against Commissioners.

Where a drainage district has been fully and lawfully established in accordance with the statute, and the commissioners duly appointed and bonds issued in furtherance of the scheme, an injunction restraining the collection of the assessment against the landowners therein, at the suit of one of them, will not issue, as against the interest of the holder of the bonds, unless it clearly appears that the commissioners have substantially departed, to the injury of the claimant, from the scheme set forth in the final report of the viewers, etc.; and it appearing in this case that such has not been done, the restraining order is properly dissolved, and the further order that the plaintiff may proceed in his action against the commissioners is approved.

5. Drainage Districts — Interpretation of Statutes — Reports—Record—Notice —Objections—Laches.

Upon the filing of the final report by the viewers, etc., in a proceeding to establish a drainage district under the provisions of the statute, a record is required by the statute to be kept in a book for the purpose, giving all interested in the proceedings notice of all that has been done materially affecting them; and when they have failed to make objection within three years, semble, they have lost their right to object, by the delay.

Appeal by plaintiffs from Connor, J., at tbe April Term, 1915, of CRAVEN.

Civil action, beard on motion to dissolve a preliminary restraining order.

Tbe action was to compel commissioners of drainage district to complete and carry out tbe scheme of drainage so as to afford tbe benefits to plaintiffs’ land as contemplated in tbe establishment of tbe district and, in tbe meantime, to restrain tbe collection of tbe assessment laid *644by tbe drainage commissioners to pay tbe accumulated interest on tbe bonds issued for cost and maintenance, etc.

On tbe bearing it was made to appear tbat tbe district bad been established on petition regularly filed; tbat preliminary and final reports bad been approved; drainage commissioners appointed; bonds to tbe amount of $45,000 issued; an assessment made to pay tbe accumulated interest thereon, wbieb tbe commissioners were proceeding to have collected for tbe purpose, as provided by tbe statute, etc.

There was evidence, also, on tbe part of plaintiffs tbat, in carrying out tbe scheme of drainage provided for, tbe commissioners bad failed to extend tbe same so as to afford any benefit to plaintiffs’ land, and further, they made some alterations in one of tbe lateral ditches, and allowed one E. A. Richardson to maintain a dam on bis lands lying adjacent to and below tbe lands of plaintiffs, thus preventing a proper drainage of plaintiffs’ lands, contrary to tbe scheme and plan adopted and contained in tbe final report of tbe viewers and confirmed by tbe court.

To these allegations defendants offered affidavits making averment tbat tbe commissioners were carrying out tbe plans as contemplated and provided for in tbe report of tbe board of viewers.

Further, tbat no alterations were made in tbe canal as established, except to make same more efficient, and these fully within tbe discretionary powers conferred upon them by tbe law, and any minor changes made by them they had acted on their best judgment and under tbe advice and direction of a competent engineer, and tbat they thereby increased tbe efficiency of tbe general plan and afforded better drainage to tbe lands and without increasing tbe cost and estimates shown on tbe final reports.

His Honor, on consideration of tbe facts in evidence, entered judgment dissolving tbe restraining order “for tbe purposes of suffering and permitting tbe collection of tbe assessments, and continued tbe cause for such other and further relief as tbe plaintiffs may show themselves entitled to.”

Plaintiffs excepted and appealed.

Moore & Dunn, O. V. Cowper for plaintiffs.

Guión & Guión for defendants.

Hoke, J\,

after stating tbe case: There have been several of tbe more recent decisions of tbe Court upholding tbe validity of these drainage laws, chapter 67, Laws 1911; chapter 442, Laws 1909, and chapter 88, Revisal of 1905, and dealing to some extent with tbe effect and procedure under them. Drainage Commissioners v. Farm Association, 165 N. C., p. 697; Drainage Commissioners v. Engineering Co., 165 N. C., p. 37; Shelton v. White, 163 N. C., p. 90; Newly v. Drainage District, *645163 N. C., p. 24; In re Drainage District, 162 N. C., p. 127; White v. Lane, 153 N. C., p. 14; Sanderlin v. Luken, 152 N. C., p. 739.

From a perusal of these cases on tbe procedure required for tbe proper formation of tbe district, notably tbat of Shelton v. White, supra, it will appear tbat tbe proceedings may be instituted by a majority in number or by tbe owners of tbree-fiftbs of tbe land in a given area, and on tbeir petition filed before the clerk a board of viewers shall be appointed, to consist of two resident freeholders of tbe county, and a competent civil and drainage engineer, this last to be on tbe recommendation of the- State Geologist, who shall go upon tbe land, make careful examination of tbe same, and report on tbe general feasibility of tbe scheme, etc. On tbe coming in of this report and tbe settlement of objections thereto, for making of which notice and opportunity is provided, if tbe scheme is approved, tbe drainage district is established and tbe board of viewers are then directed to make a second and more extended report, based on a complete survey of tbe land, marking out tbe course of tbe main and all lateral ditches, levees, etc., giving a description of each owner’s land, etc., etc., and they shall file with this report a drainage map of tbe district, showing “tbe location of tbe ditch or ditches and other improvements, and tbe boundary, as closely as may be determined by tbe records of tbe lands owned by each individual landowner within tbe district. Tbe location of any railroads or public highways, and tbe boundary of any incorporated towns or villages within tbe district, shall be shown on tbe map. There shall be also prepared to accompany this map a profile of each levee, drain or water-course, showing tbe surface of tbe ground, tbe bottom or grade of tbe proposed improvement, and tbe number of cubic yards of excavation or fill in each mile or fraction thereof, and tbe total yards in tbe proposed improvement and tbe estimated cost thereof, and plans and specifications, and tbe cost of any other work required to be done.” Laws 1909, cb. 224, sec. 10.

Tbe second report shall also contain a classification of tbe lands and a rate of assessment for tbe same, as directed in section 12 of tbe act.

On tbe coming in of this second report, notice and opportunity for objection is again provided for, and, when tbe objections have been adjusted and settled pursuant to tbe law, tbe proceedings are all recorded in a special book, called tbe drainage record, and tbe maps thereof filed in tbe office and one of these pasted or otherwise attached to tbe record book, thus giving to every one interested full opportunity to observe and note in detail tbe scheme and plans for carrying out tbe undertaking.

It may be well to note, also, tbat in Shelton v. White, supra, it was held, tbat while tbe individual or minority landowner could present bis *646objection and have tbe matter determined in respect to either tbe preliminary or completed report, tbe issue as to him is confined to tbe effect upon bis own land, and if tbe material question involved is decided in bis favor, and it is found that bis land was in no wise benefited, tbe court has tbe power either to exclude bis land from tbe drainage district or, if it was found necessary to retain it in order to tbe success of tbe scheme, it could be retained and tbe owner compensated in damages for any injury done, ample provision being made in tbe law for such a course (Laws 1909, sec. 11) ; and further, that a majority in number of tbe landowners or three-fifths in tbe amount of land, could, even to tbe second report, by their exceptions, taken in apt time, raise and maintain objections to tbe validity of tbe entire scheme.

When tbe final report is filed and recorded provision is made for the selection of a board of drainage commissioners, and for tbe appointment of a superintendent of construction, and from a careful perusal of tbe statute it will appear that these officers are charged with tbe duty of carrying out, substantially, tbe plans and specifications of tbe report as recorded, and that their powers in tbe premises are largely ministerial in character. They make out tbe assessment rolls, which are constituted a lien on tbe property, as in 'ease of tax lists, observing tbe classification and ratio of assessment determined upon by tbe board of viewers..

True, under tbe provision of section 4 of tbe act the drainage commissioners are given “power to correct errors and modify tbe report of tbe details of tbe report of tbe engineer and viewer if, in their judgment, they can increase tbe efficiency of tbe drainage plan and afford better drainage to tbe lands of tbe district without increasing tbe estimated cost submitted by tbe engineer and viewers and confirmed by tbe court,” but this modification of tbe former law only contemplates such minor changes of “detail” as not infrequently occur in tbe practical carrying out of plans which have been indicated in a careful survey, and does not, as stated, and was not intended to authorize substantial departure from tbe plans as contained in tbe final report of the board of viewers.

Tbe careful and minute provisions of tbe statute in reference to tbe final report, requiring that tbe course of tbe main and all lateral canals and ditches shall be carefully marked out, the boundaries of tbe lands given, tbe levels ascertained and stated, and both surface and profile maps made and recorded, and tbe restricted terms in which tbe power to alter it is given to tbe drainage board to “correct errors and modify details,” affords convincing evidence that, by correct interpretation, this final report of tbe board of viewers is tbe controlling chart by which tbe drainage commissioners are to be guided in constructing tbe work *647and making out tbe assessment rolls under the law. And if, in a suit of this character, it should be clearly made to,appear that the commissioners of drainage, in carrying out the ministerial duties imposed upon them, should endeavor to collect of the landowners sums in excess of their own assessment, or that they had made out these rolls in utter disregard of the classification and ratio of assessment established by the report, or that they had made such changes in the plans and specifications of the final report as to exceed their powers in the premises and work substantial wrong and hardship upon the individual members of the district, in either case, the complainant being free from laches or undue delay, the court would have the right to interfere and stay the collection of the amounts- until a proper assessment could be established. But, when the commissioners, adhering substantially to the plans and specifications of the report, have made assessments contemplated and authorized by the law, then collection should not be stayed because the scheme has not afforded to a landowner the drainage he had anticipated. That was a question that was settled at the time the report was adopted and the district established, and may not be again questioned in a proceeding of this character. Nor will the creditor be hindered in the present collection of his debt, otherwise properly assessed, because the drainage commissioners, in breach of these duties under the law, have failed to do their work efficiently or to properly open and construct the drains, since a default of that kind must be corrected by proper action between the members and the commissioners, a course still open to plaintiff on the record, if the necessary facts are ultimately established.

This* being, to our mind, the proper construction of our drainage statutes, and it is in accord with decisions on the subject here and elsewhere interpreting laws'of similar import, Newby v. Commissioners, 163 N. C., supra; White v. Lane, 153 N. C., p. 14; Hartwell Drainage District v. Mickelberry, 257 Ill., 509; Kelly, Exr., v. Drainage District, 157 Iowa, 735; Fardell Drainage District v. Board of Supervisors, 157 Iowa, 590, we are of opinion that the .court below made correct decision in dissolving the injunction order restraining collection of the assessments and leaving the action to proceed as between the landowners, plaintiffs, and the drainage commissioners. In the present case the plaintiffs base their right to relief:

1. On the ground that the drainage commissioners have not properly carried out the drainage scheme, and that the work done has afforded plaintiffs’ land no substantial benefit.

2. That they have made departure from the plans and specifications of the board of viewers, to plaintiffs’ injury.

As we have endeavored to show, the first ground may not be asserted against regular assessment to pay the bondholders. And, on careful *648consideration of the pleadings and affidavits, we are unable to discover that the drainage commissioners have made such substantial departure from the' plans and specifications of the board of viewers as to render their assessment void. Apart from this, it appears that the assessments which the commissioners are now seeking to collect, purporting to be in pursuance of authority vested in them by law and the terms of the decrees in the cause have been made and filed with the clerk of the Superior Court since 1911, and that no legal objection has been made thereto by plaintiffs or any one else until the' commencement of the present suit in 1914, and it would seem that plaintiffs have thereby waived the right to object to the assessments in so far as the creditor is concerned.

We find no error in the judgment of the court, and the same is in all respects

Affirmed.