Sawyer v. Camden Run Drainage Dist.

• Decision Date: 18 February 1920
• Docket Number: 12.
• Citation: 102 S.E. 273,179 N.C. 182
• Parties: SAWYER v. CAMDEN RUN DRAINAGE DIST. ET AL.
• Court: North Carolina Supreme Court

102 S.E. 273

179 N.C. 182

SAWYER v. CAMDEN RUN DRAINAGE DIST. ET AL.

No. 12.

Supreme Court of North Carolina

February 18, 1920

Appeal from Superior Court, Camden County; Lyon, Judge.

Action by A. Sawyer against the Camden Run Drainage District and others. Judgment for plaintiff, and defendants except and appeal. No error, and judgment affirmed.

An allegation that a defendant cannot be found in the state after diligent search is an essential averment in affidavit for service of original process by publication.

The action is to recover damages for injury to plaintiff, caused by cutting a drainage canal through the same, at the instance and for the benefit of the defendant drainage district, the said lands lying outside and below the boundaries of the district.

There was denial of liability, and on issues submitted the jury rendered the following verdict:

"Did the defendant wrongfully enter upon lands of plaintiff, and cause to be constructed right of way and canal and cut timber as alleged in complaint? Answer: Yes.

(2) Is plaintiff's cause of action barred by the statute of limitation? Answer: No.

(3) What damage, if any, is plaintiff entitled to recover? Answer: $505.50 including interest."

Judgment on the verdict for plaintiff, and defendants excepted and appealed.

Thompson & Wilson, of Elizabeth City, for appellants.

Aydlett & Sawyer and Ehringhaus & Small, all of Elizabeth City, for appellee.

HOKE J.

The facts in evidence tended to show that, in January, 1911 certain landowners instituted proceedings to establish defendant drainage district under chapter 442, Laws 1909, and amendments thereto, and filed their petition, setting forth the desired boundaries, which included petitioners' lands and a large number of others who were named as parties defendant; that among the latter were the heirs of C. W Grandy, whose individual names are given, and who then owned a large body of land within the designated territory, containing 450 or 500 acres; that these heirs, being residents of Norfolk, Va., publication was had on affidavit setting forth the nature of the proceedings; that said defendants (naming them) "were all nonresidents, that they were necessary and proper parties defendant in the cause, and that service of summons could not be made on them except by publication according to law"; that the preliminary survey and plat showed that the proposed canal would extend for a considerable distance through the tract of land owned by said defendants, but, in the final decree, establishing the drainage district, only 37 1/2 acres of the land was included in the district, and the judgment determining the question of the benefits and burdens is referred to in the report as modified and changed in the final decree. Plaintiff, having by proper deed acquired the title of these heirs of C. W. Grandy, sues for the damages caused by cutting the canal through that portion of his land not included in the drainage district, and in our opinion his recovery for such damage must be sustained.

The authorities seem to be decisive that under our statute as now framed, the allegation that a defendant cannot be found in the state after diligent search is an essential averment to a valid service of original process by publication. Davis v. Davis, 102 S.E. 270, at the present term. But, if it be conceded that the affidavit in the present instance contains averments that are the full equivalent of terms referred to, and that the holders of plaintiff's title have been made parties, it is held in this jurisdiction that these drainage districts, established under the provisions of our present statutes, are liable for wrongs and torts committed on the property of adjoining proprietors whose...