#### J. P. DAVENPORT v. PITT COUNTY DRAINAGE DISTRICT No. 2.

(Filed 29 October, 1941.)

1. Drainage Districts § 3: limitation of Actions § 6—

Allegations that a drainage district failed to cause a canal to follow the channel of a creek as originally planned and stopped the canal on the lands of the plaintiff, and failed to keep the mouth of the channel properly cleared out, resulting in plaintiff’s land: being flooded, commencing immediately after the canal was finished and continuing practically every year thereafter, states a cause of action for continuing trespass, and the right of action for damages to crops for all the years is barred after the lapse of three years from the original trespass. C. S., 441 (3).

2. Trespass § le—

A wrongful or negligent flooding or ponding water on the lands of another constitutes a trespass upon the lands.

3. Drainage Districts § 2—

A drainage district is a corporation, and as any other corporation, public or private, cannot be bound by the acts of its officials or agents acting separately or individually. 0. S., 1290.

4. Same—

The burden is upon plaintiff alleging- a contract with a drainage district to establish the validity of the alleged contract, and a contract signed by the drainage commissioners is incompetent against the district in the absence of any evidence of formal corporate action authorizing its execution.

5. Same—

A drainage district, being a gwasi-public corporation created for the public benefit, is without power to contract with an individual landowner within the district as to the manner in which the ditches and canals should be cut and maintained, since it cannot give special or particular rights to one landowner not enjoyed by all landowners similarly situated in the district, or contract in any manner which would interfere with the performance of its duties to the public generally, and such contract is void and its breach cannot be made the basis of a suit against the district.

Appeal by plaintiff from Carr, J., at May Term, 1941, of Pitt.

Affirmed.

Tbe defendant is a drainage district created and existing under and by virtue of cb. 442, Public Laws 1909, and cb. 67, Public Laws 1911, and acts amendatory thereof (N. C. Code of 1939 [Micbie], secs. 5312, et seq.), and tbe plaintiff is a landowner in sucb district.

Tbe complaint alleges tbat tbe plaintiff suffered damages by reason of tbe negligent construction of a canal and by tbe breach of a continuing contract between tbe defendant and plaintiff wherein tbe defendant *238agreed to cut and maintain a lateral ditcb to properly drain plaintiff’s lands and to open tbe moutb of said canal and keep it open, all of wbicb resulted in tbe plaintiff’s lands being flooded, soaked and sogged and bis crops being injured.

Tbe answer denies tbe allegations of negligence and of breach of contract, and pleads tbe ten and tbree-year statutes of limitations in bar of any recovery by tbe plaintiff.

When tbe plaintiff bad introduced bis evidence and rested bis case tbe defendant moved for a judgment as in case of nonsuit (C. S., 567). Tbis motion was allowed as to “all causes of action set up in tbe complaint, except plaintiff’s action for damages to bis crops occurring witbin tbe tbree-year period next preceding tbe commencement of tbis action.” At tbe conclusion of all tbe evidence tbe defendant renewed its motion for judgment as in case of nonsuit of action for damages to crops, wbicb motion was allowed, and from judgment nonsuiting and dismissing tbe action plaintiff appealed, assigning errors.

J. B. James and Julius Brown for plaintiff, appellant.

F. M. Wooten, F. M. Wooten, Jr., and Albion Dunn for defendant, appellee.

ScheNCK, J.

Since tbe plaintiff took no .exception to tbe court’s ruling at tbe close of bis evidence sustaining defendant’s motion for judgment as of nonsuit for “all causes of action set up in tbe complaint, except plaintiff’s action for damages to bis crops occurring witbin tbe tbree-year period next preceding tbe commencement of tbe action,” and since tbe plaintiff testified, “I am not claiming any damages for 1939 and 1937,” and since tbe action was commenced 23 February, 1940, we are concerned only witb tbe alleged causes of action in so far as tbey relate to damages to plaintiff’s crops in 1938.

We will first consider tbe action based upon tbe alleged negligence of tbe defendant. Tbe negligence alleged, of wbicb there is any evidence, is tbe failure to cause tbe canal to follow tbe channel of Grindle’s Creek, as originally planned, and tbe stopping of tbe canal on tbe lands of tbe plaintiff, and tbe failure to keep tbe moutb of tbe canal properly cleared out, thereby causing tbe water to overflow and pond upon tbe lands of tbe' plaintiff resulting in damages to bis crops.

According to plaintiff’s own testimony, tbis overflow and ponding of water on bis land commenced immediately after 'the canal was finished in 1923, and continued practically every year following through 1936, and occurred again in 1938, but did not occur in 1939.

Tbe defendant pleads tbe tbree-year statute of limitations as a bar to any recovery for damages alleged to have occurred in 1938. Any *239wrongful or negligent flooding and ponding of water on tbe plaintiff’s lands was a trespass on bis real property which originated in 1923 and continued on through 1938, and any cause of action resulting from such a continuing trespass accrued in 1923, and was therefore barred in 1940 when this action was commenced.

When a trespass on real property is a continuing one, an action therefor shall be commenced within three years from the original trespass, and not thereafter. C. S., 441 (3).

“If we view the negligence or wrongful conduct complained of as a continuing omission of duty toward the plaintiff in permitting the logs, laps, and trestles to remain in the condition described, and a source of probable injury to plaintiff’s land by causing obstructions in the river and consequent overflow, in order to repel the bar of the statute of limitations it must affirmatively appear from the evidence that these conditions were under control of the defendant, and the breach of duty with reference thereto had taken place some time within the period of three years preceding the injury. C. S., 441. The law will not permit recovery for negligence which has become a fait accompli at a remote time not within the statutory period, although injury may result from it within the period of limitation.” Hooper v. Lumber Co., 215 N. C., 308, 1 S. E. (2d), 818.

We therefore conclude that his Honor’s holding that any cause of action bottomed upon the alleged negligence of the defendant was barred by the statute of limitations was correct.

Any cause of action bottomed upon an alleged breach of contract by the defendant is likewise untenable for the reason that the contract alleged was not properly proven and, even if it had been so proven, it is ultra vires and void. The alleged contract, dated in September, 1928, and signed by the three drainage district commissioners and the plaintiff, after reciting a deviation in the construction of the canal from the channel of the old creek as originally planned, which deprived the plaintiff’s lands of proper drainage, and the failure to keep the mouth of the canal free from rubbish and obstruction, which caused the water to'overflow and pond upon the plaintiff’s lands, resulting in damages to his crops, provides that:

> “Now, therefore, the above named commissioners of Pitt County Drainage District No. 2 hereby covenant, contract and agree to cut and maintain said lateral ditch along the lines of the old creek run, of sufficient size and length to properly drain the above lands into the main canal; and do further covenánt, contract and agree to properly and adequately have opened the mouth of the canal and to properly keep open the same.

> *240“And tbe said J. P. Davenport, owner of said land, in consideration of tbe above, and upon tbe performance of tbe same, does release said Pitt County Drainage District No. 2 from any and all liability to date to bim by reason of said canal in (not) having been cut to follow in general tbe fun of tbe old creek, and for permitting tbe moutb of said canal, as cut, to remain obstructed.”

It will be noted tbat it nowbere appears in tbe record tbat tbe foregoing alleged contract was ever authorized by tbe defendant corporation. All tbe evidence tends to prove is tbat tbe instrument was signed by tbe drainage commissioners. There is no evidence of any direction or authorization of such action at a formal meeting of tbe governing authority of tbe corporation. “Tbe members of a corporation cannot, separately and individually, give their consent in such manner as to bind it as a collective body, for, in such case, it is not tbe body tbat acts; and this is no less tbe doctrine of tbe common than of tbe Roman Civil Law.” Duke v. Markham, 105 N. C., 131, 10 S. E., 1017; Everett v. Staton, 192 N. C., 216, 134 S. E., 492. “As a rule authorized meetings are prerequisite to corporate action based upon deliberate conference and intelligent discussion of proposed measures. 7 R. C. L., 941; 15 C. J., 460; 43 C. J., 497; P. & F. R. Ry. Co. v. Comrs. of Anderson County, 16 Kan., 302; Kirkland v. State, 86 Fla., 84. Tbe principle applies to corporations generally, and by tbe express terms of our statute, as stated above, every county is a corporate body. C. S., 1290; Duke v. Markham, 105 N. C., 131; Hill v. R. R., 143 N. C., 539; Everett v. Staton, 192 N. C., 216.” O’Neal v. Wake County, 196 N. C., 184, 145 S. E., 28. Tbe burden of establishing tbe validity of tbe alleged contract in tbe case at bar rested upon tbe plaintiff and in tbe absence of any evidence of formal corporate action authorizing its execution it was not only invalid but incompetent as evidence.

Furthermore, even though tbe absence of evidence of tbe alleged contract having been authorized by formal corporate action be overlooked, tbe contract by its very terms is plainly ultra vires and therefore void. Tbe statute, sec. 19, cb. 442, Rublic Laws 1909 (N. C. Code of 1939 [Micbie], sec. 5337), provides tbat tbe Board of Drainage Commissioners when appointed shall have tbe right “to bold property and convey tbe same, to sue and be sued, and shall possess such other powers as usually pertain to corporations.” Being a quasi-public corporation, created for tbe “public benefit”; the powers usually pertaining to such corporations would not authorize a drainage district to enter into a contract tbat would give special or particular rights or claims to one landowner in tbe drainage district tbat is not enjoyed by all landowners similarly situated. “Corporations for public objects, to which large powers are given to enable them to accommodate tbe public and upon which public duties *241are imposed for tbe benefit of tbe community, are generally beld to be disabled to do any act wbicb would amount to a renunciation of tbeir duty to tbe public or wbicb would directly and necessarily disable them from performing it.” Am. Jur., Corporations, par. 805, p. 819.

Being of opinion against tbe plaintiff on both causes of action alleged, we affirm tbe judgment, as in no view of tbe facts, giving tbe plaintiff tbe most favorable construction of tbe evidence, can be recover.

Affirmed.