Beaufort County Lumber Co v. Com'rs

• Decision Date: 28 November 1917
• Docket Number: (No. 311.)
• Citation: 94 S.E. 457,174 N.C. 647
• Court: North Carolina Supreme Court
• Parties: BEAUFORT COUNTY LUMBER CO. v. DRAINAGE COM'RS.

94 S.E. 457

(174 N.C. 647)

BEAUFORT COUNTY LUMBER CO.

v.DRAINAGE COM'RS.

(No. 311.)

Supreme Court of North Carolina.

Nov. 28, 1917.

Appeal from Superior Court, Robeson County; Connor, Judge.

Action by the Beaufort County Lumber Company against the Drainage Commissioners. Judgment of nonsuit and plaintiff appeals. Affirmed.

McLean, Varser & McLean, of Lumberton, for appellant.

Johnson & Johnson, of Lumberton, for appellee.

HOKE, J. [1] A perusal of the record will disclose that the drainage district in question has been duly and regularly established, pursuant to the provisions of the statute applicable (chapter 442, Laws 1909; chapter 67, Laws 1911); that the plaintiffs and all others owning lands or timber interests within the defined area have been duly notified both of the hearing on the intermediate and final reports; that plaintiff company not only had actual notice but attended the hearings, certainly the final one, and filed exceptions to the report insisting on a reduction of the amount assessed against it and also on the invalidity of the statutes as being violations of the constitutional provisions, both state and federal, established in protection of the, rights of private property; that the exception as to amount was in part sustained, a reduction being ordered, and those as to unconstitutionality of the statute having been overruled and final judgment entered, plaintiff appealed and failed to prosecute the same, thus acquiescing in the final judgment as properly determinative of the rights of the parties in the premises. On this record, the court is of opinion that such judgment is conclusive of the questions presented, and that the judgment of nonsuit should be sustained.

Wo have held, In numerous cases, that these drainage acts are constitutional, and plaintiff having been duly made a party and afforded full and fair opportunity to appear before a court with power to ascertain and determine any and all matters affecting its proprietary interests, the judgment referred to is an estoppel of record against it and it is no longer open to plaintiff to further litigate the questions presented. Drainage Commissioners v. Mitchell, 170 N. C. 324, 87 S. E. 112; Griffin v. Commissioners, 169 N. C. 642, 86 S. E. 575; Shelton v. White, 163 N. C. 90, 79 S. E. 427; Newby v. Drainage District, 163 N. C. 24, 79 S. E. 266; Sanderlin v. Luken, 152 N. C. 738, 68 S. E. 225; City of Kinston v. Loftin, 149 N. C. 255, 62 S. E. 1069; Davidson v. New Orleans, 96 U. S. 104, 24 L. Ed. 616.

It is urged for the plaintiff that, while the judgment may conclude as to any and all damages caused to plaintiff's land situate within the drainage district, no such effect should be allowed as to its timber interests; such interests, under the recent decision of Dover Dumber Co. v. Drainage District, 91 S. E. 714, not being involved in the proceedings. It is the recognized principle that, in order to a full estoppel, the court should have jurisdiction of the subject-matter (Hobgood v. Hobgood, 169 N. C. 485, 86 S. E. 189), but we do not think the position is open to plaintiff on this record or that any such effect follows from the decision referred to. In that case it was held that, under the drainage acts, no assessments for benefits could be properly made against the owners of timber interests alone, the statute in terms clearly contemplating that only the land was liable; but it was not at all held that, when one owning both land and timber interests within the prescribed area had been made a party and duly notified, he was not required to present a claim for the entire injury suffered. The language of the statute (section 11) on this subject is:

"It Khali be the *' * * duty of the engineer and viewers to assess the damages claimed by any one that is justly right and due to them for land taken or for inconvenience imposed because of the construction of the improvement, or for any other legal damages sustained. Such damages shall be considered separate and apart from any benefit the land would receive because of the proposed work"

—language that is broad enough and clearly intended to include the claim for any and all damages sustained by any party by reason of the proposed canal,-certainly to the extent that...