Banks Et Ux v. Sheriff

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK
• Citation: Banks Et Ux v. Sheriff, 86 S.E. 713, 170 N.C. 14 (N.C. 1915)
• Decision Date: 03 November 1915
• Docket Number: (No. 216.)
• Parties: BANKS et ux. v. LANE, Sheriff, et al.

86 S.E. 713

170 N.C. 14

BANKS et ux.

v.LANE, Sheriff, et al.

(No. 216.)

Supreme Court of North Carolina.

Nov. 3, 1915.

Appeal from Superior Court, Lenoir County; Peebles, Judge.

Action by R. C. Banks and wife against R. B. Lane, Sheriff of Craven County, and others. From an order continuing a restrain ing order to the hearing, defendants appeal. Reversed.

Guion & Guion, of New Bern, for appellants.

Loftin, Dawson & Manning, of Kins-ton, for appellees.

CLARK, C. J. [1] This action was brought by the plaintiffs to restrain the collection by the sheriff of Craven of an assessment levied on the land of George B. Pate to pay the bonds and interest issued for the construction of the "Moseley Creek drainage district, " in Craven and Lenoir counties, in which the land levied on is situate.

The drainage district was constituted in accordance with chapter 442, Laws 1909, as amended by chapter 67, Laws 1911. The proceedings were regular in all respects. The plaintiffs ask to restrain the collection of the assessment upon the ground that the feme plaintiff is a mortgagee of the land owned by George B. Pate, and was not made a party to the proceedings by which this drainage district was created. The statute does not require that mortgagees or other lienholders shall be made parties. In Drainage Commissioners v. Farm Association, 165 N. C. 701, 81 S. E. 949, Ann. Cas. 1915C, 40, this point was presented, and it was held that:

A mortgage is "subject to the authority to form these drainage districts for the betterment of the lands embraced therein. The statute is based upon the idea that such drainage districts will enhance the value of the lands embraced therein to a greater extent than the burden incurred by the issuing of the bonds, and the mortgagee accepted the mortgage knowing that this was the declared public policy of the state."

In that case the mortgage had been given prior to the formation of the district. It is no more necessary that mortgagees and other lienholders should be consulted in the formation of such districts than to permit a mortgagee or lienholder, in the absence of statutory provision, to enjoin an assessment for the pavement of sidewalks or streets or other assessment on property for improvements. It is otherwise when private property is condemned to public use, as under section 7 of the Drainage Act (chapter 442, Laws 1909). The state has adopted as its public policy the encouragement of these drainage districts to improve the health and increase the fertility of the sections where better drainage is needed. The proceeding is in the nature of a proceeding in rem, and the final judgment therein raises the presumption that the lands embraced in such district will be benefited in value. When "a majority of the resident landowners in a proposed drainage district or the owners of three-fifths of all the land which will be affected" have signed the petition for the proposed drainage district (Laws 1909, c. 442, § 2), the proceeding is instituted, and all other landowners in the district are notified. The act then prescribes the method of procedure in which the interests of all partiesare duly safeguarded. To require all lien-holders or mortgagees to be made parties would give the tracts of land thereby affected a double or even greater vote, and would probably defeat these betterments, as they are not usually interested in improving the value of the mortgaged property.

Laws 1909, c. 442, § 37, provides:

"The provisions of this act shall be liberally construed to promote the leveeing, ditching, draining and reclamation of wet and overflowed lands. The collection of the assessments shall not be defeated, where the proper notices have been given, by reason of any defects in the proceedings occurring prior to the order of the Court confirming the final report of the viewers; but such order or orders shall be conclusive and final that all prior proceedings were regular and according to law, unless they were appealed from." Com'rs v. Engineering Co., 165 N. C. 37, 80 S. E. 897.

The act requires that, before the confirmation of any final report, there shall be a publication of the notice for hearing for 20 days in a newspaper, and by posting a written or printed notice on the door of the courthouse and in five...