Armstrong v. Beaman

• Decision Date: 23 February 1921
• Docket Number: 13.
• Citation: 105 S.E. 879,181 N.C. 11
• Parties: ARMSTRONG ET AL. v. BEAMAN ET AL.
• Court: North Carolina Supreme Court

105 S.E. 879

181 N.C. 11

ARMSTRONG ET AL. v. BEAMAN ET AL.

No. 13.

Supreme Court of North Carolina

February 23, 1921

Appeal from Superior Court, Pasquotank County; Calvert, Judge.

Petition by Patience Armstrong and others for the establishment of a drainage district, opposed by W. A. Beaman and others. From an order directing that clerk dismiss the petition in a certain event, petitioners appeal. Affirmed.

This is an appeal from an order on a petition for the establishment of a drainage district. The petition having been filed, on the hearing before the clerk the petition was offered in evidence, together with other testimony on the part of the petitioners tending to show that said petition had been signed by a majority of the resident landowners in the proposed district, and by the owners of three-fifths of all the land affected or to be assessed for the expense of the proposed improvements.

The defendants or cross-petitioners then stated that they were ready to offer testimony tending to show that many of those who originally signed the petition desired to withdraw, and that, eliminating those desiring to withdraw, there would not be sufficient signatures left on the petition to constitute a majority of the landowners or to represent three-fifths of the acreage. The clerk stated that he would hear such testimony, but that he would hold that the allegations of the cross-petitioners, if proven, would not justify an order by him allowing said cross-petitioners to withdraw, and furthermore, would constitute no legal obstacle to the appointment of an engineer and viewers as contemplated by the drainage act. Whereupon the clerk entered judgment as appears of record; it being agreed that the names of the engineer and viewers be left blank in said order, and filled in by the clerk at his convenience after due inquiry as to the fitness of the proposed engineer and viewers. Upon the defendants' or cross-petitioners' appeal from this order of the clerk his honor, T. H. Calvert, entered an order remanding the cause to the clerk, with directions to dismiss the petition if the cross-petitioners should establish their contention that, eliminating those desiring to withdraw, sufficient signatures would not be left on the petition to show a compliance with the provisions of the Drainage Act. To this order the petitioners excepted and appealed to the Supreme Court.

W. L Cohoon and Meekins & McMullan, all of Elizabeth City, for appellants.

Ehringhaus & Small and Aydlett & Simpson, all of Elizabeth City, for appellees.

ALLEN J.

The initial step in the establishment of a drainage district under chapter 442 of the Laws of 1909, now section 5284 et seq. of the...