Daugherty v. Commissioners of Mosely Creek Drainage District , 183 N.C. 149 ( 1922 )

At November Term, 1921, the matter was heard by Lyon, J., trial by jury having been waived by consent of all parties. At the conclusion of the evidence it was agreed that his Honor should try the issues of fact and give his decision in writing.

The petitioners complain of the assessments designated as "new," and they allege and have offered evidence that the "new" or increased assessment was made to recuperate the loss accruing to the district from the erroneous and illegal attempt to revise the original assessment made against the lands of the Seth West estate. The original report says: "It appeared to us that as the timber lands in the swamps of the Seth West estate will receive benefits from the drainage of said swamps, we hereby make the following classification, based (151) upon the benefit to said timber lands, this classification to be deducted from the classification as to the permanent benefits to the said West estate given above." Examination of the assessment roll shows that all the lands were assessed per acre approximately. The official report shows that the total assessment against the Seth West land amounted to $19,731.21, and that the engineer and viewers, after classifying and assessing the timber separate from the lands, deducted $7,107.02 from the assessment of $19,731.21 against the entire land, and left the balance of $12,624.19 as assessment against the land, exclusive of the assessment against the timber growing thereon. In 1904, when the sheriff attempted to collect the assessment against the timber, the Dover Lumber Company, purchaser of said timber, instituted an action to restrain such collection, and this Court decided that growing timber is not assessable separable from the land upon which it is growing, and the timber lease was not assessable for drainage purposes.Lumber Co. v. Comrs., 173 N.C. 117. This decision prevented the collection of any part of the $7,107.02, which had been assessed against said timber, and the failure to collect said assessment caused a deficit in the funds of said district which began on the first Monday in September, 1914, and has steadily grown, increasing each year by approximately the sum of $710, and interest on all unpaid assessments, and aggregating at 6 per cent interest more than $6,500. Whereas, in truth and in fact, it is much more, because the money borrowed to make up the deficit cost more than 6 per cent interest.

The petitioners contend that the assessment against the timber having been deducted from the assessment of the Seth West estate lands and such deductions having been declared illegal, it is right and proper to restore the amount erroneously deducted from the land on which the timber is growing, and on which the assessment was originally made.

The decision rendered 14 March, 1917, in Lumber Co. v. Comrs., supra, held that a timber lease, which had been made of the growing timber on said Seth West estate by a lease of J. W. Stewart, was not assessable for drainage purposes, and the Court held that the attempt to divide the assessment against the Seth West lands between the owner of the land and of the timber growing thereon was illegal and the $7,107.02 having been erroneous deducted from the assessment of the Seth West estate lands and assessed against the timber thereon having never been paid, the nonpayment of said sums caused a deficit in the funds amounting to $10,000, which having been further augmented by the nonpayment of the annual payment, the board of commissioners of said district instructed the secretary of the board to calculate the deficiency and prorate the amount of deficiency among all the lands in the district according to its classification with its pro rata share of (152) such deficiency, and to amend the assessment roll by increasing the original assessment roll of 17 April, 1911, against each tract or parcel of land so that each of said tracts and parcels of land should pay its pro rata share of such deficiency. Pursuant to such instructions, the original assessment roll was changed, and each tract was assessed with its pro rata part of such deficiency with the result that the petitioners claim that they have been assessed several thousand dollars more than they were originally liable for.

The restraining order in this case was issued restraining the sheriff from collecting such increased charges, and the court held that the deduction of $7,107.02 from the original assessment against the lands of the Seth West estate because of the timber thereon having been leased, was erroneous and illegal, and the amount so assessed should be changed and assessed now against lands of the Seth West estate. From this judgment the defendants appealed. The findings of fact by the court, there being evidence on both sides, is binding and conclusive on appeal. Shoaf v. Frost, 127 N.C. 307. The assessment against the land was erroneously divided, and when the court restrained the collection of that part of the assessment against the timber it was equivalent to omitting the assessment on that part thereof and the deficiency should now be reassessed on proper notice to the owner of the "Seth West" lands. The defendants contend on one hand that the petitioners cannot bring this matter up in the original procedure by motion, but only by summons and on petition filed attacking the assessment, but in Bank's v.Lane, 171 N.C. 505, this Court held as to this same drainage district that such motion should be made in the cause where the facts in regard to the proceedings have record.

That part of the judgment which requires the commissioners to prepare and file without delay a statement showing the receipts and expenditures of all funds coming into their hands belonging to said district, and have the court papers, maps, etc., recorded, and that a meeting of the landowners be held was eminently appropriate, and it seems that the defendants themselves have joined in asking that this be done.

It appears that this proceeding since the creation of the drainage district has been going on about 12 years. Thousands of acres of land and about 100 people owning the lands thereon are involved, maps and profiles have been made, judgment, orders and decrees have been signed in numerous cases. Thousands of dollars have been collected and expended, bonds for a large sum are outstanding, a vacancy in (153) the board of commissioners caused by death has existed for many years, some assessments, one of them against the railroad company, have not been collected, nor any serious attempt made to collect them, yet no meeting nor election has been held for more than 10 years, no account has ever been filed or audited, no paper, map, or other thing has ever been recorded, and the original papers have been shunted around from lawyer's office to lawyer's office in Craven and Lenoir counties. By much handling and cramming into overcrowded envelopes they have become dog-eared, worn, and mutilated, and are likely to be lost or destroyed. The court properly took steps to enforce the law as set out in the Consolidated Statutes relative to drainage districts with a view of protecting the people who, with faith in the law, undertook this expensive and costly work of draining thousands of acres of swamp and overflowed land making it valuable and productive and improving the whole territory for residential and agricultural purposes.

His Honor properly adjudged that the additions to the original assessment roll to make up out of other tracts of land the deficiency caused by omitting from the assessment of the Seth West tract the value of the growing timber, $7,107.02, leased to Stewart, was illegal, and should be set aside, and the collection thereof restrained, and that the whole of such deficiency should be assessed as in the original roll against the Seth West estate.

Affirmed.

Cited: Tyner v. Tyner, 206 N.C. 779.