In re Cow Castle Drainage Dist.

• Decision Date: 26 June 1917
• Docket Number: 9694.
• Citation: 92 S.E. 1036,107 S.C. 310
• Parties: IN RE COW CASTLE DRAINAGE DIST. v. AMMONS ET AL. BERRY ET AL.
• Court: South Carolina Supreme Court

92 S.E. 1036

107 S.C. 310

IN RE COW CASTLE DRAINAGE DIST.

BERRY ET AL. v. AMMONS ET AL.

No. 9694.

Supreme Court of South Carolina

June 26, 1917

Appeal from Common Pleas Circuit Court of Orangeburg County; Thos S. Sease, Judge.

Proceeding by Daniel D. Berry and others against Gena Ammons and others to set aside an order of the circuit court establishing a drainage district. From an order of the circuit court affirming that of the clerk, complainants appeal. Affirmed.

The following exceptions were taken in the case:

I. Because the circuit judge erred in sustaining the finding of the clerk of court that he had jurisdiction to proceed with the formation of Cow Castle drainage district before he had required proof that the petitions therefor were signed by a majority of the landowners, and that the land proposed to be included in the said district was subject to overflow and too wet for cultivation.

II. Because the circuit judge erred in sustaining the clerk of court in finding that the petition for the proposed Cow Castle drainage district was signed by a majority of the landowners therein.

III. Because the circuit judge erred in ruling that a number of original petitioners should not be allowed to withdraw their names from the petition for the drainage, and join the nonpetitioners, or those opposed to the drainage, because they had signed the petition for the drainage under a misapprehension through mistake, and because of misrepresentations.

IV. Because the circuit judge erred in sustaining the clerk of court in construing that the word "or" did not mean "and" where it occurs in the following quotation from the drainage act: "Wherever a petition signed by a majority of the resident landowners in a proposed drainage district or by the owners of more than half the land in acreage."

V. Because the clerk of court erred in holding that, even if the persons who desired to withdraw from the petition were allowed to do so, it would not affect the result, for the reason that the petitioners would still have left on the petition a majority of the landowners in the district in favor of the drainage.

VI. Because the circuit judge erred in sustaining the clerk of court in establishing the proposed Cow Castle drainage district, when there was no proof in the record to show that the land embraced therein was subject to overflow and too wet for cultivation, and when the clerk himself made no affirmative finding that the land was of that character, and the record discloses that the land is, in fact, not of that character.

VII. Because the circuit judge erred in sustaining the clerk in including in the drainage district the land of the nonpetitioners, merely upon the ground that the said land would receive some benefit; the error being that no land should be included in a drainage district unless the said land will receive a reasonable benefit, that is to say, a benefit approximating the amount of assessment which the land will have to bear to pay for the drainage.

VIII. Because the circuit judge erred in sustaining the ruling of the clerk that the board of viewers were disinterested: the error being that the freeholder members of the board of viewers were both petitioners for the drainage, and one of them, J. D. Shuler, is the indorser of a note for $1,500 for the preliminary expenses incurred in the formation of the said district, which he will have to pay if the drainage is not established, and which he will not have to pay if the drainage district is established.

Brantley & Zeigler, of Orangeburg, for appellants.

Wolfe & Berry and Raysor & Summers, all of Orangeburg, for respondents.

GAGE J.

Public interests suggest a speedy decision of this controversy. We shall for that reason forego a very full discussion of the questions made by the appellants' elaborate argument.

The counsel for respondents opened his argument with the interesting historical statement that this cause is but "the lengthened shadow of the late Dr. Samuel Dibble." The locus of the controversy lies around Bowman, in Orangeburg county, which respondents' counsel referred to as the last scene of the public activities of Dr. Dibble in the development of the state's agricultural low lands.

The case arises out of the application of the act of 1911 (27 Stats. 92) and its amendments. Any novel and radical experiment in public administration provokes controversy. We have before this considered if these drainage laws were within the limits of the Constitution. Jackson v Breeland, 103 S.C. 184, 88 S.E. 128.

The region now involved lies southeast of the city of Orangeburg stretching towards Dorchester, and is designated "Cow Castle drainage district." It embraces a total area of 42,353 square acres, and occupied by some 525 landowners; and the contemplated bond issue to effect the enterprise is $200,000.

Citizens of the territory in question filed a petition with the clerk of the circuit court wherein it was alleged that they constituted a majority of the resident landowners therein, and that they were owners of more than half of the land therein, that the following (stating it) was a description of the area which they proposed to erect into a drainage district, and that the landed area was subject to overflow and too wet for cultivation, and the public health and welfare would be promoted by drainage and ditching the same.

The prayer was for the issuance of a summons to those landowners in the proposed district who had not joined in the petition and for the appointment of a board of viewers to examine the lands and make a preliminary report upon the allegations of the petition.

The summons suggested by the statute was issued. Thereafter some 75 citizens who had aforetime signed the petition for the district appeared before the clerk and demanded that their names should be stricken off the petition. The demand was heeded, the allowance of which is not an issue, in view of the disposition of the fourth request. The clerk then named as a board of viewers "a disinterested and competent engineer and two resident freeholders of the county." The board made a preliminary report, and stated that, "after carefully considering the location of the lands, * * * it was of the opinion * * * that all of the lands * * * would receive some benefit, while by far the majority would receive a very material benefit," and a map was filed along with the report which indicated the proposed ditches.

Those opposed to the drainage scheme made objection before the clerk of any further procedure. They charged that many names on the petition for drainage had been secured by fraud; they charged that the lands proposed to be drained were not wet and subject to overflow; they challenged the jurisdiction of the clerk on the same grounds made in this court. At several sittings the clerk took much testimony on the issues thus raised, and he...