#### In the Matter of ATKINSON-CLARK CANAL COMPANY, Special Proceeding No. 471.

(Filed 23 November, 1949.)

1. Drainage Districts and Corporations § 10—

When the validity of a drainage assessment is challenged the burden is upon the drainage district or corporation to show that it was created in substantial compliance with the applicable statutes and that the assessments were levied pursuant to and in compliance with the statutory provisions. G.S. 156-37 through G.S. 156-43.

2. Drainage Districts and Corporations § 1—

In order to establish a drainage corporation it is necessary that a petition ini conformity with G.S. 156-37 be filed and that commissioners be appointed and that they file a report in conformity with G.S. 156-38, and that there be an adjudication and confirmation of the report, G.S. 156-41. It is only after such confirmation that the corporation may be declared to exist and may proceed to organize and levy assessments, G.S. 156-42.

3. Same—

Where petitioners show only the granting of an easement in. response to a petition by an individual to be allowed to drain into an existing canal on the lands of another under the provisions of G.S. 156-2, G.S. 156-3 and G.S. 156-10, such evidence is insufficient to show the establishment of a drainage corporation under the provisions of G.S. 156-37, et seq.

4. Drainage Districts and Corporations § 10—

The fact that most of the proprietors have paid the drainage-assessments levied against their lands does not preclude another proprietor from attaching the validity of the assessments levied against her.

Appeal by exceptor Estelle Harris Bunting, from Frizzelle, J., at Chambers in G-reenville, N. C., 10 February, 1949. From Pitt.

Tbe facts pertinent to tbis appeal are as follows:

1. On 22 September, 1948, a paper writing, purporting to be a certificate of assessment of tbe Board of Directors of Atkinson-Clark Canal *132Company, was presented to tbe Clerk of tbe Superior Court of Pitt County, to be passed upon and approved by bim, in accordance with tbe provisions of G.S. 156-42. Tbe Clerk signed an order refusing to approve tbe certificate wbicb showed a number of unpaid assessments, among tbem being three aggregating $1,628.00 against Estelle Harris Bunting. Tbe petitioner appealed from tbe order of th,e Clerk to tbe Judge of tbe Superior Court.

2. The appellant moved, on 28 October, 1948, to be made a party and for permission to be beard in tbe matter, wbicb motion was granted.

3. Tbe cause came on for bearing before bis Honor at Chambers in Greenville, N. 0., upon tbe record and various documents offered by petitioner’s counsel, as follows:

(a) Tbe purported certificate of assessment.

(b) Certain paper writings, purporting to be copies of minutes of stockholders’ and directors’ meetings of tbe Atkinson-Clark Canal Com? pany, purporting to authorize certain improvements to parts of tbe canal and to levy three separate assessments to defray the cost thereof; none of wbicb was signed. Exception. Later tbe purported original minutes were delivered to bis Honor, but no evidence was offered as to their authenticity.

(e) A petition signed by ten landowners reading as follows: “We tbe undersigned owners of land included in tbe boundaries of tbe Atkinson-Clark Canal Company do hereby petition tbe Directors of tbe company to have tbe existing canals cleaned and reworked to provide a sufficient drainage for our lands. We further request that tbe Directors levy an assessment on tbe land in tbe boundaries of Atkinson-Clark Canal Company for tbe purpose of paying tbe cost of such improvements.”

(d) Tbe original papers of record in the office of tbe Clerk of tbe Superior Court of Pitt County, being known as “Special Proceeding No. 471.”

4. It was admitted in open court that if tbe Atkinson-Clark Canal Company is a corporation, it was “organized and derived its vitality and existence from Special Proceeding No. 471 in tbe office of tbe Clerk of tbe Superior Court of Pitt County,” which proceeding is copied in full in tbe record.

5. Tbe appellant requested tbe court to find as a fact that tbe petitioner bad offered no evidence before tbe Clerk of tbe Superior Court or before bis Honor, tending to show that tbe proposed certificate of assessment was “in conformity with and in compliance with tbe report of tbe Commissioners,” as required by G.S. 156-42; that tbe proposed certificate of assessment is not in compliance with tbe provisions of G.S. 156-42; and moved that tbe order of tbe Clerk of tbe Superior Court be affirmed and tbe appeal dismissed; and tendered judgment accordingly. Tbe *133court declined to find tbe requested facts; denied tbe motion and also declined to sign tbe tendered judgment. To all of wbicb tbe appellant excepted.

6. By consent of tbe parties it was stipulated and agreed that bis Honor might render judgment out of term and out of tbe county.

Whereupon tbe court found as a fact that tbe Directors of tbe Atkinson-Clark Canal Company have made three assessments upon tbe lands wbicb compose tbe said company, tbe assessments baving been made in tbe years 1947 and 1948; tbat tbe assessments were made for a purpose provided for in Section 156-42 of tbe General Statutes of North Carolina, to wit, for tbe maintenance and upkeep of tbe canal of tbe' corporation; tbat tbe assessments were properly made by tbe Directors of said Canal Company; tbat tbe proposed certificate of assessment should be filed for record amongst tbe papers on file in tbe office of tbe Clerk of tbe Superior Court of Pitt County relating to tbe organization of tbe Canal Company and known as Special Proceeding No. 471; and tbat tbe amounts of money due by tbe proprietors of tbe land, who are listed in said certificate, should be entered as judgments in rem against such proprietors, in tbe amounts shown in tbe certificate.

Judgment was entered accordingly. To tbe facts found by tbe court and to tbe signing of tbe judgment, tbe appellant excepted and appeals, assigning error.

H. S. Ward and F. M. Wooten, Jr., for appellee.

Sam. B. Underwood, Jr., for appellant.

Denny, J.

The appellant challenges the validity of the assessments which the petitioner undertook to levy. She excepted to the finding of fact that the assessments were properly made by the Directors of the Canal Company, on the ground that the petitioner offered no evidence to show that the assessments were made in compliance with the report of Commissioners on which the corporation is based, as required by G.S. 156-42.

The burden was upon the petitioner to show that it was created and organized pursuant to the provisions of what is now Subcbapter II, G.S. 156-37 through 156-43, and that the assessments made were levied pursuant to and in compliance with the provisions of such subcbapter. Whenever any drainage corporation, drainage district or municipality seeks to levy a special assessment on lands within the boundaries of such district or municipality, and the validity of the assessment is challenged; it has the burden of showing a substantial compliance with such statutory provisions as are essential to the validity of the assessment. In re *134 Westover Canal, 230 N.C. 91, 52 S.E. 2d 225; Holton v. Mocksville, 189 N.C. 144, 126 S.E. 326.

In order to create a drainage corporation, such as the petitioner purports to be, before such corporation can be created, it is necessary for a petition to be filed in the Superior Court by a proprietor in fee of swamp lands, which cannot be drained except by cutting a canal through the lands of another or other proprietors in fee, situated at a lower level and which would also be materially benefited by the cutting of such canal. G.S. 156-37. It is then provided in G.S. 156-38:

> “On the establishment by the petitioner of his allegations, the court shall appoint three persons as commissioners who, having been duly sworn, shall examine the premises and inquire and report—

> “1. Whether the lands of the petitioner can be conveniently drained otherwise than through those of some other person.

> “2. Through the lands of what other persons-a canal to drain the lands of the petitioner should properly pass, considering the interests of all concerned.

> “3. A description of the several pieces of lands through which the canal would pass, and the present values of such portions of the pieces of lands as would be benefited by it, and the reasons for arriving at the conclusion as to the benefit.

> “4. The route and plan of the canal, including its breadth, depth, and slope, as nearly as they can be calculated, with all other particulars necessary for calculating its cost.

> “5. The probable cost of the canal and of a road on its bank, and of such other work, if any, as may be necessary for its profitable use.

> “6. The proportion of the benefit (after a deduction of all damages) which each proprietor would receive by the proposed canal and a road on its bank if deemed necessary, and in which each ought, in equity and justice, to pay toward their construction and permanent support.

> “7. With their report they shall return a map explaining, as accurately as may be, the various matters required to be stated in their report.”

When such commissioners file their report, “If it appear that the lands on the lower level will be increased in value twenty-five per cent or upwards by the proposed improvement, within one year after the completion thereof, and that the cost of making such improvement will not exceed three-fourths of the present estimated value of the land to be benefited, and that the proprietors of at least one-half in value of the land to be affected consent to the improvement, the court may confirm such report, either in full or with such modifications therein as shall be just and equitable.” G.S. 156-40.

And it is only after a final adjudication and confirmation of the report of the Commissioners, that the proprietors of the several pieces of land *135adjudged to be benefited by the improvement shall be declared a corporation, G.S. 156-41, and may proceed to organize and levy assessments in conformity with the provisions of G.S. 156-42.

The petitioner admits that it is not a corporation unless these essential statutory requirements were complied with in the Special Proceeding, known as No. 471, which was instituted in Pitt County, 18 January, 1886.

Therefore, it is necessary to determine whether or not that Special Proceeding shows a substantial compliance with the above statutes, and that the petitioner was created as a drainage corporation, pursuant to the petition, answer, Commissioners’ report and order of confirmation entered therein.

It is disclosed by Special Proceeding No. 471, that J. J. Hathaway and wife, Rebecca Hathaway, filed a petition in the office of the Clerk of the Superior Court of Pitt County, in conformity with the provisions of Code 1297, Rev. 3983, now G.S. 156-2, to obtain permission to construct a canal from their swamp land, as authorized by Code 1305, Rev. 3990, now G.S. 156-10, across the lands of the defendants to a ditch' or canal constructed by the defendants, and which drained their lands and emptied into Tar River. Each of the defendants was summoned to appear before the Clerk of the Superior Court of Pitt County. A hearing was held and Commissioners appointed, as authorized by Code 1297, Rev. 3983, now G.S. 156-2. The Commissioners went on the premises, as required by Code 1298, Rev. 3984, now G.S. 156-3, and reported that the petitioners were entitled to the relief sought; designated where the canal was to be cut, prescribed its width and depth; reported that the utility or safety of the defendants’ canal or ditch would not be impaired or endangered by the petitioners draining their land in the manner set forth, nor would the defendants be damaged thereby. The only assessment authorized by the report was in the following language: “That whenever the defendants, or those who are owners of the canal upon the defendants’ lands, shall clean out their entire canal the petitioners shall pay to them the sum of Fifteen dollars which we assess to be their proportionate part of said work.”

The cause then came on for hearing before the Clerk of the Superior Court, upon the report of the Commissioners. The report was confirmed, and an order entered granting the petitioners an easement over the lands of the defendants and authorizing them to construct the canal “in the manner determined on and reported by the Commissioners,” as provided in Code 1299, Rev. 3985, now G.S. 156-4.

There is nothing in this Special Proceeding from which it can be inferred that the parties either proceeded under the statutes relied on by *136the petitioner or from which it might reasonably be inferred that a drainage corporation was created or intended to be created.

It would seem the petitioner and the petitioning proprietors assumed the corporate existence of the Canal Company when the improvements were undertaken in 1941. Such a corporation might have been organized and the assessments duly levied if the proprietors of the existing canal had proceeded in conformity with the provisions of G.S. 186-43.

It is argued that the judgment below should not be disturbed, since most of the assessments levied in 1947 and 1948 have been paid. However, that fact does not foreclose the right of the appellant to challenge the validity of the assessments. And we do not think it amiss to point out that counsel for the appellant, stated in the course of his argument before this Court, that the appellant is not resisting the payment of her rightful share of the cost of the improvements heretofore made, but is only insisting upon the determination of her proper share of the cost of these improvements in the manner provided by law.

In view of what we have said, and in the light of the statutes cited, it is our opinion that the petitioner has not only failed to show its existence as a drainage corporation, but has also failed to show substantial compliance with the statutes which authorize such assessments if it were a corporation. Therefore, the Court below should have found the facts as requested by the appellant and allowed her motion to affirm the order of the Clerk of the Superior Court and to dismiss the appeal.

This cause is remanded for judgment in accord with this opinion.

Error and remanded.