Ahoskie Creek, In re, 168

• Decision Date: 15 June 1962
• Docket Number: No. 168,168
• Citation: 257 N.C. 337,125 S.E.2d 908
• Court: North Carolina Supreme Court
• Parties: In re Drainage of AHOSKIE CREEK and its Tributaries, White Oak Swamp, Knee Branch, Turkey Creek, Fort Branch, Turkey Branch, Mill Branch, Peggy Branch, Other Tributaries, and Lands Adjacent Thereto.

Page 908

125 S.E.2d 908

257 N.C. 337

In re Drainage of AHOSKIE CREEK and its Tributaries, White Oak Swamp, Knee Branch, Turkey Creek, Fort Branch Turkey Branch, Mill Branch, Peggy Branch, Other Tributaries, and Lands Adjacent Thereto.

No. 168

Supreme Court of North Carolina.

June 15, 1962

Norman & Rodman, Plymouth, and Pritchett & Cooke, Windsor, for respondents appellants.

Stuart A. Curtis, Ahoskie, Frank M. Wooten, Jr., and David E. Reid, Jr., Greenville, for petitioners appellees.

PARKER, Justice.

Respondents in the record have a grouping of their exceptions at the end of the charge to the jury, and before the judgment and appeal entries, but the grouping of their exceptions contains no language that they assign the matters or things referred to in their exceptions as error.

However, we will discuss their exception to the denial by the court of their motion for judgment of involuntary nonsuit made at the close of all the evidence. G.S. § 1-183.

Respondents first contend that their motion for nonsuit should have been allowed for the reason that all the evidence shows that the Bertie, Hertford, Northhampton Drainage District No. 1 is an improvement district as defined by G.S. § 156-62, subd. 5, but that so far as their lands in the district are concerned it is a reclamation district. They contend second their motion should have been allowed for the reason that there is no affirmative evidence that the drainage district will benefit their lands therein.

The first contention is without merit. The preliminary report of the board of viewers states that the drainage district will be an improvement district, and the clerk's order decreeing the establishment of Bertie, Hertford, Northampton Drainage District No. 1. states it is an improvement district. The record shows that during the trial before Judge Paul and the jury petitioners and respondents entered into a stipulation 'that the Drainage District contains the lands of Weyerhaeuser Company and North Carolina Pulp Co., is an improvement district as described in the statute.' G.S. § 156-71 authorized the engineer and board of viewers to personally examine the land in the drainage district, and classify it with reference to the benefit it will receive from the construction of the drainage district. They were authorized by the statute to classify the land benefited in five classes. The land receiving the highest benefit to be marked 'Class A'; that receiving the next highest benefit 'Class B'; that receiving the next highest benefit 'Class C'; that receiving the next highest benefit 'Class D'; and that receiving the smallest benefit 'Class E.' As to respondents' tract of land No. 181, 30 acres were classified as 'Class B,' 4 acres as 'Class C,' and 228 acres as 'Class D,' as set forth in the final report of the board of viewers filed with the clerk of the superior court of Bertie County on 20 June 1961. In respondents' exceptions filed to the classification of their lands, they did not challenge the classification of 30 acres of tract No. 181 as 'Class B.' In the same report respondents' tracts of land Nos. 549 and 551 were both classified as 'Class E,' and respondents in their exceptions to the final report did not challenge the classification of these two tracts of land.

It seems manifest that respondents elected to try their case in the lower court on the theory that Bertie, Hertford, Northampton Drainage District No. 1 was an improvement district in respect to all their lands in the district, and now they want to change their attitude with respect thereto on appeal, and contend that so far as their lands in the drainage district are concerned it is a reclamation district. Such a change of position with respect to a material point between the trial and the Supreme Court will not be permitted. The appeal, ex necessitate, must follow the theory of the trial in the court below. Lyda v. Town of Marion, 239 N.C. 265, 79 S.E.2d 726; Leggett v. Southeastern People's College, 234 N.C. 595, 68 S.E.2d 263; Hargett v. Lee, 206 N.C. 536, 174 S.E. 498.

It is expressly provided by G.S. § 156-65 that if the court shall determine that there is any land included in a proposed drainage district, established thereunder, that will not be benefited by the establishment of the district, such land shall be excluded from the drainage district.

In O'Neal v. Mann, 193 N.C. 153, 161, 136 S.E. 379, 383, it is said: 'Only lands which are benefited are subject to assessments; but all lands included in the district, which are benefited, are subject to assessments, the amount of the assessment upon the land of each owner being determined by the benefit which the said land receives.'

Evidence offered by Bertie, Hertford, Northampton Drainage District No. 1 tends to show that on all respondents' tracts of land Nos. 181, 273, and 545, there is some growing timber, and no farm crops, and that respondents are engaged in the business of growing timber. C. R. Friddle, who works for the Soil Conservation Unit Service of Hertford County, a witness for the drainage district testified on cross-examination: 'I saw Coxville soil on each tract [tracts 181, 273, and 545]. It is adapted to the growing of timber when properly drained.' Emphasis ours. Joe Covington, found by the court, without objection, to be an expert scientist in the classification of soils, testified for the drainage district: 'Coxville silt loam is the dominant on all three tracts of 273, 181, and 545. It is a poorly drained soil.'

TRACT NO. 181

This tract of land is composed of 262 acres, is located on the road from Aulander to Rich Square, and is classified as follows: 30 acres 'Class B,' 4 acres 'Class C,' and 228 acres 'Class D,' by the board of viewers in their report filed 20 June 1961. Respondents do not challenge this classification of the 30 acres as 'Class B.' In respondents' exceptions to the classification of their lands in the final report of the board of viewers on 20 June 1961 they stated: 'As to the 30 acres in Class B, this classification is not challenged.' In respondents' exceptions to the report of the board of viewers filed with the clerk on 30 October 1961 it is stated: 'These respondents admit that approximately 35 acres of this Tract No. 181 will receive some trace of benefit if the lateral entering the east end of said land along an old ditch is constructed.' In these exceptions respondents further state in effect that the said 35 acres is not sufficiently drained. This tract is a pocosin type land. The only ditch on it of any consequence is very much clogged up. Much of the area is full of reeds. One of the proposed laterals of the drainage district will go up the ditch about 1500 feet. The natural drainage of this tract is in the direction of this proposed lateral. Water was found standing in the ditch and in ruts on the back of the tract. The few drainage outlets were clogged up and unable to take care of drainage in a normal manner. Coxville silt loam is dominant on this tract, which is identified as poorly drained. Thomas W. Rivers, held by the court, without objection, to be an expert civil engineer specializing in drainage, testified for the drainage district: 'In the vicinity of that ditch, and on either side, there is a large area that was covered with weeds, reeds, brambles; there were numerous tall dead snags where trees had died, and it was all quite flat. In that particular area there was on the back of the tract a growth of timber, of pines, quite a lot of reeds. * * There is a cleared area that leads away from these road ditches and in which when I was there we found quite a lot of; a large accumulation of water, debris, and collection of materials that you get when water runs off of surface areas.' William S. Grimes of the Hertford County Health Department testified for petitioners that when he went on Tract 181 he found mosquito larvae there.

TRACT NO. 273

This tract of land consists of 696 acres which are classified as follows: 52 acres 'Class B,' 18 acres 'Class C,' 411 acres 'Class D,' and 215 acres 'Class E,' by the board of viewers in their report filed 20 June 1961. On this area was a mill pond consisting of 20 or 30 acres. It has two natural drainage ditches, both of which were badly clogged with logs, debris, and brush of all types. There were water marks on the trees 16 to 18 inches high from the ground for a considerable distance on both sides of the proposed lateral that will come to the ditch. On both sides of the proposed lateral water has washed across the road. Water drains from this in the direction of the proposed lateral. When it had not rained in the general area for three or four weeks water was seen standing in spots, and the land around the ditches that led to the old mill pond was generally wet. This tract is of a rolling type with its outer edges at a higher level than the old mill pond section. It borders a paved highway between Aulander and Ahoskie. This tract is covered pretty thoroughly with growing timber. The soil appears to be quite thick, plastic, and generally impermeable to water.

TRACT NO. 545

This tract consists of 81 acres, and is classified by the board of viewers in their report filed 20 June 1961 as follows: 23 acres 'Class C,' and 58 acres 'Class E.' This tract of land is of a pocosin type, is flat, and has no drainage whatever. It had been burned over. Some type of equipment had been used to break up the land. There is an old ditch on the back side pretty well clogged up. Herbert Jenkins, Jr.,...