SUBCHAPTER I. DRAINAGE BY INDIVIDUAL OWNERS.

ARTICLE 1. Jurisdiction in Clerk of Superior Court.

Part 1. Petition by Individual Owner.

Sec.

Part 2. Petition under Agreement for Construction.

PART 1. PETITION BY INDIVIDUAL OWNER.

§ 156-1. Supplemental proceeding.

The proceedings initiated under this Chapter may be, to the extent practicable, supplemented by the procedures of Chapter 40A.

History

(Code, s. 1324; Rev., s. 4028; C.S., s. 5260; 1981, c. 919, s. 23.)

Local Modification. - Alexander, Little River Drainage District: Pub. Loc. 1927, c. 484; Iredell: Pub. Loc. 1937, c. 591; Pasquotank: Pub. Loc. 1923, c. 181; Pub. Loc. 1927, c. 264; Pub. Loc. 1929, c. 471; Robeson: Pub. Loc. 1927, c. 197; Rowan: Pub. Loc. 1937, cc. 591, 592; Tyrrell: Pub. Loc. 1927, c. 336; city of Washington: Pr. 1921, c. 149.

Editor's Note. - Session Laws 1981, c. 919, s. 23, effective January 1, 1982, rewrote this section, which formerly provided that the proceeding under this Subchapter should be as prescribed in Article 2 of the Chapter Eminent Domain.

Legal Periodicals. - For note on disposition of diffused surface waters in North Carolina, see 47 N.C.L. Rev. 205 (1968).

CASE NOTES

As to the constitutionality of this Chapter, see Sanderlin v. Luken, 152 N.C. 738, 68 S.E. 225 (1910); Forehand v. Taylor, 155 N.C. 353, 71 S.E. 433 (1911).

This Chapter comes within the police power of the State. Winslow v. Winslow, 95 N.C. 24 (1886). See also, Porter v. Armstrong, 139 N.C. 179, 51 S.E. 926, petition for rehearing dismissed, 137 N.C. 703, 51 S.E.2d 1036 (1905).

Various Statutes Harmonized. - While the various statutes for the drainage of swamplands in eastern North Carolina have not the same provisions in all respects, they have been collected and are to be found in this Chapter, and should be construed to harmonize, and constitute, with such variations, a system of drainage laws for the State. Adams v. Joyner, 147 N.C. 77, 60 S.E. 725 (1908); Sawyer Canal Co. v. Keys, 234 N.C. 360, 67 S.E.2d 259 (1951).

Foundation of Right to Condemn. - The right of the State to condemn land for drains rests on the same foundation as its right in cases of public roads, mills, railroads, schoolhouses, etc. Norfleet v. Cromwell, 70 N.C. 634 (1874).

The right to drain through the banks of a natural watercourse is exactly similar in character to the right to construct dykes or levees to keep their excessive waters from overflowing the adjacent lands, a right which has been recognized in the legislation of all countries from the most ancient times. Sanderlin v. Luken, 152 N.C. 738, 68 S.E. 225 (1910).

Flexible Procedure Provided. - The statutes authorizing the creation, maintenance and improvements of drainage districts provide flexible procedure which may be modified and molded by decrees from time to time to promote the beneficial objects sought by the creation of the district, subject to the restrictions that there should be no material change nor any change that would impose additional costs upon landowners except to the extent of benefits to them. In re Lyon Swamp Drainage & Levee Dist., 228 N.C. 248, 45 S.E.2d 130 (1947).

The correct procedure to secure additional authority for proper maintenance and improvements in a drainage district is by motion or petition in the original cause. In re Lyon Swamp Drainage & Levee Dist., 228 N.C. 248, 45 S.E.2d 130 (1947).

Power to Issue Bonds and Make Assessments Applicable Only to Section of District Benefited. - Where proposed improvements and repairs will primarily benefit lands embraced in one section of a drainage district and would be of no substantial benefit to landowners in another section thereof, the drainage commissioners have power under statutory authority to issue bonds and make assessments applicable only to the section benefited. In re Lyon Swamp Drainage & Levee Dist., 228 N.C. 248, 45 S.E.2d 130 (1947).

Cited in Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950); Chappell v. Winslow, 258 N.C. 617, 129 S.E.2d 101 (1963); Taylor v. Askew, 17 N.C. App. 620, 195 S.E.2d 316 (1973).


§ 156-2. Petition filed; commissioners appointed.

Any person owning pocosin, swamp, or flatlands, or owning lowlands subject to inundation, which cannot be conveniently drained or embanked so as to drain off or dam out the water from such lands, except by cutting a canal or ditch, or erecting a dam through or upon the lands of other persons, may by petition apply to the superior court of the county in which the lands sought to be drained or embanked or some part of such lands lie, setting forth the particular circumstances of the case, the situation of the land to be drained or embanked, to what outlet and through whose lands he desires to drain, or on what lands he would erect his dam, and who are the proprietors of such lands; whereupon a summons shall be served on each of the proprietors, and, on the hearing of the petition the court shall appoint three persons as commissioners, who shall be duly sworn to do justice between the parties.

History

(1795, c. 436, P.R.; 1852, c. 57, ss. 1, 2; R.C., c. 40, s. 1; Code, s. 1297; Rev., s. 3983; C.S., s. 5261.)

CASE NOTES

Clerk of the superior court has jurisdiction of a proceeding to obtain a right of drainage over the land of an adjoining landowner and to assess damages, etc. Durden v. Simmons, 84 N.C. 555 (1881).

This Chapter and the amendments thereto are the charts which should guide the commissioners, and their decisions, findings and report should conform thereto. Porter v. Armstrong, 139 N.C. 179, 51 S.E. 926, petition for rehearing dismissed, 137 N.C. 703, 51 S.E. 1036 (1905).

This Chapter applies only to artificial outlets made over the land of another to reach a natural watercourse. Mizell v. McGowan, 129 N.C. 93, 39 S.E. 729 (1901).

Readjustment. - When the rights and duties of adjoining landowners as to drainage in a certain canal have been determined under this Chapter, and judgment entered, proceedings subsequently brought for the purpose of readjustment, owing to change of ownership and partition, etc., are in effect a motion in the cause, in which the judgment, unlike a final judgment, is not conclusive; and the cause can be brought forward from time to time, upon notice to the parties, and further decrees made to conform to the exigencies and changes which may arise. Staton v. Staton, 148 N.C. 490, 62 S.E. 596 (1908); Sawyer Canal Co. v. Keys, 234 N.C. 360, 67 S.E.2d 259 (1951).

Joint Petition. - Two or more separate proprietors cannot sustain a joint petition for a ditch to drain their lands, without alleging that a common ditch would drain the lands of all the petitioners. Shaw v. Burfoot, 53 N.C. 344 (1861).

Landowner Must Be Made Party. - An order by the county commissioners (now superior court) appointing appraisers to assess the value of the benefits and damages which would accrue to the owner of land on account of a certain canal sought to be cut through his land, upon the petition of other parties, filed under the provisions of this Chapter, is void, unless said landowner is made a party to the petition. Gamble v. McCrady, 75 N.C. 509 (1876).

Where separate owners have derived their lands subject to a drainage system placed upon the entire tract by the original owner, each one using the system must bear the costs of maintenance and repair required by the portion of the system on his own premises. Lamb v. Lamb, 177 N.C. 150, 98 S.E. 307 (1919).

Water may not be diverted from its natural course so as to damage another, but it may be increased and accelerated. Hocutt v. Wilmington & W.R.R., 124 N.C. 214, 32 S.E. 681 (1899); Mizell v. McGowan, 125 N.C. 439, 34 S.E. 538 (1899); Lassiter v. Norfolk & C.R.R., 126 N.C. 509, 36 S.E. 48 (1900); Mizell v. McGowan, 129 N.C. 93, 39 S.E. 729 (1901); Barcliff v. Norfolk S.R.R., 168 N.C. 268, 84 S.E. 290 (1915).

Making of Canals. - The owners of swamps, whose waters naturally flow into natural watercourses, may make such canals as are necessary to drain them of the water naturally flowing therein, although in doing so the flow of water in the natural watercourse is increased and accelerated so that the water is discharged on the land of an abutting owner. Mizell v. McGowan, 120 N.C. 134, 26 S.E. 783 (1897).

Liability for Damages from Diversion. - Where a person diverts water from a stream by cutting a channel from it, and at a point lower down the stream turns it back into the old channel, and by its own momentum it is carried on to the lands of an adjoining owner, he is liable for damages. Briscoe v. Young, 131 N.C. 386, 42 S.E. 893 (1902).

Surface waters should be drained so as to be carried off in the due course of nature. The upper proprietor is liable in damages to the land of the lower proprietor caused by water diverted by his ditches and not carried to a natural waterway. Briscoe v. Parker, 145 N.C. 14, 58 S.E. 443 (1907).

When the lands of the lower proprietor are damaged by the improper drainage of the upper proprietor, he may elect to bring an action for damages or proceed under this and the following sections. Briscoe v. Parker, 145 N.C. 14, 58 S.E. 443 (1907).

One is liable for damages caused to the lands of another by his diverting the natural flow of surface water thereto. Roberts v. Baldwin, 151 N.C. 407, 66 S.E. 346 (1909).

Artificial Waterway Constructed for Temporary Purposes. - When an upper proprietor of lands constructs and maintains for his own use and advantage an artificial waterway or structure affecting the flow of water, without invading the rights of the lower proprietor, for a temporary purpose or a specific purpose which he may at any time abandon, the upper proprietor comes under no obligation to maintain the structure, though the incidental effect has been to confer a benefit on the lower tenant. Lake Drummond Canal & Water Co. v. Burnham, 147 N.C. 41, 60 S.E. 650 (1908).

Setting Aside Former Judgment. - If a former judgment in a similar proceeding has not been pleaded in an action for drainage of lands, as an estoppel or res adjudicata, before final judgment, the party relying thereon must move the court within one year to set the judgment aside for excusable mistake or inadvertence. Adams v. Joyner, 147 N.C. 77, 60 S.E. 725 (1908).

As to jury questions, see Heirs at Law of Collins v. Heirs at Law of Haughton, 26 N.C. 420 (1844).

Appeal. - An order in a drainage proceeding directing matters proper for the determination of the commissioners to be referred to a jury is appealable. Porter v. Armstrong, 134 N.C. 447, 46 S.E. 997 (1904).

Formerly the law required the appointment of disinterested freeholders as commissioners in a proceeding to obtain a right of drainage over the lands of an adjoining landowner. Durden v. Simmons, 84 N.C. 555 (1881).

Cited in In re Atkinson-Clark Canal Co., 231 N.C. 131, 56 S.E.2d 442 (1949); Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).


§ 156-3. Duty of commissioners.

The commissioners, or a majority of them, on a day of which each proprietor of land aforesaid is to be notified at least five days, shall meet on the premises and view the lands to be drained or embanked, and the lands through or on which the drain is to pass or the embankment to be erected, and shall determine and report whether the lands of the petitioner can be conveniently drained or embanked except through or on the lands of the defendants or some of them; and if they are of opinion that the same cannot be conveniently done except through or on such lands, they shall decide and determine the route of the canal, ditch, or embankment, the width thereof, and the depth or height, as the case may be, and the manner in which the same shall be cut or thrown up, considering all the circumstances of the case, and providing as far as possible for the effectual drainage or embankment of the water from the petitioner's land, and also securing the defendant's lands from inundation, and every other injury to which the same may be probably subjected by such canal, ditch, or embankment; and they shall assess, for each of the defendants, such damage as in their judgment will fully indemnify him for the use of his land in the mode proposed; but in assessing such damages, benefits shall be deducted.

History

(1795, c. 436, P.R.; 1852, c. 57, ss. 1, 2; R.C., c. 40, s. 2; Code, s. 1298; Rev., s. 3984; C.S., s. 5262.)

CASE NOTES

Effect of G.S. 156-16. - G.S. 156-16, concerning the drainage of lowlands, does not expressly repeal this section, but leaves in operation such of its provisions as are not repugnant to such section. Worthington v. Coward, 114 N.C. 289, 19 S.E. 154 (1894).

Cited in Porter v. Armstrong, 134 N.C. 447, 46 S.E. 997 (1904); In re Atkinson-Clark Canal Co., 231 N.C. 131, 56 S.E.2d 442 (1949); Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).


§ 156-4. Report and confirmation; easement acquired; exceptions.

The commissioners shall report in writing, under their hands, the whole matter to the court, which shall confirm the same, unless good cause be shown to the contrary; and on payment of the damages and cost of the proceedings the court shall order and decree that the petitioner may cut the canal or ditch, or raise the embankment in the manner reported and determined by the commissioners; and thereupon the petitioner shall be seized in fee simple of the easement aforesaid: Provided, that, without the consent of the proprietor, such canal, ditch, or embankment shall not be cut or raised through or on his yard or curtilage, nor be allowed when the same shall injure any mill, by cutting off or stopping the water flowing thereto; nor shall such dam be allowed so as to create a nuisance by stagnant water, or cut off the flow of useful springs or necessary streams of water, or stop any ditches of such proprietor when there is no freshet.

History

(1795, c. 436, s. 2, P.R.; 1835, c. 7; 1852, c. 57, ss. 1, 2; R.C., c. 40, s. 3; Code, s. 1299; Rev., s. 3985; C.S., s. 5263.)

CASE NOTES

Conclusive Effect of Commissioners' Report. - The report of commissioners appointed to condemn lands and assess damages for the purpose of drainage is, like the verdict of a jury, conclusive of the facts therein ascertained, until set aside. Norfolk S.R.R. v. Ely, 101 N.C. 8, 7 S.E. 476 (1888).

Power of Judge to Set Aside Report. - On appeal from the judgment of the clerk upon the report of commissioners appointed to lay off a ditch for drainage of lowlands, the judge could set aside the report either for cause or in his discretion, if in his opinion the ends of justice could be subserved by that course. Worthington v. Coward, 114 N.C. 289, 19 S.E. 154 (1894).

Setting Aside of Commissioners' Report Not Reversed on Appeal. - Where judge set aside commissioners' report because it did not comply with the statute, and further found as a fact in his order that two of the commissioners had been guilty of gross indiscretion, the Supreme Court would not reverse his order, whether the report conformed to the statute or not. Porter v. Armstrong, 139 N.C. 179, 51 S.E. 926, petition for rehearing denied, 137 N.C. 703, 51 S.E. 1036 (1905).

Jury to Settle Issues of Fact. - Upon an application to condemn lands for the purpose of drainage, the issue of fact raised by the pleadings should be framed and settled by a jury, and cannot be raised or considered upon exceptions to the report of the commissioners appointed to assess damages. Norfolk S.R.R. v. Ely, 101 N.C. 8, 7 S.E. 476 (1888).

Acquisition of Title in Lands Condemned. - Where, upon the petition of one or more parties, under this section, leave was granted by the county court to cut a canal across the land of another for the purposes of drainage, the petitioners and their assignees, upon the report of the jury provided for in the statute being confirmed, acquired not merely an easement, but title in fee to the land condemned. Norfleet v. Cromwell, 70 N.C. 634 (1874).

Cited in In re Atkinson-Clark Canal Co., 231 N.C. 131, 56 S.E.2d 442 (1949); Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).


§ 156-5. Width of right-of-way for repairs.

The commissioners, when they may deem it necessary, shall designate the width of the land to be left on each side of the canal, ditch, or dam, to be used for the protection and reparation thereof, which land shall be altogether under the control and dominion of the owner of the canal, ditch, or dam, except as aforesaid: Provided, that in no case shall a greater width of land on both sides, inclusive of a dam, be taken than five times the base of such dam.

History

(R.C., c. 40, s. 6; Code, s. 1302; Rev., s. 3985a; C.S., s. 5264.)

CASE NOTES

Remand When Unnecessary Amount of Land Condemned. - Where, upon appeal from the report of the commissioners, the jury found that the amount of land condemned by the commissioners for the purpose of the protection and reparation of the ditches was unnecessary, it was proper for the court to remand the cause, with directions to constitute another commission. Winslow v. Winslow, 95 N.C. 24 (1886).


§ 156-6. Right of owner to fence; entry for repairs.

Any proprietor, through or on whose land such canal or ditch may be cut or embankment raised, may put a fence or make paths across the same, provided the usefulness thereof be not impaired; and the owner of the canal, ditch, or dam, his heirs and assigns, shall at all times have free access to the same for the purpose of making and repairing them; doing thereby no unnecessary damage to the lands of the proprietors.

History

(1795, c. 436, s. 2, P.R.; 1835, c. 7; 1852, c. 57, ss. 1, 2; R.C., c. 40, s. 4; Code, s. 1300; Rev., s. 3986; C.S., s. 5265.)

§ 156-7. Earth for construction of dam; removal of dam.

The earth necessary for the erection of a dam may be taken from either side of it, or wherever else the commissioners may designate and allow. And such dam may be removed by the proprietor of the land, his heirs or assigns, to any other part of his lands, and he may adjoin any dam of his own thereto, if allowed by the court on a petition and such proceedings therein as are provided in this Chapter, as far as the same may apply to his case: Provided always, that the usefulness of the dam will not be thereby impaired or endangered.

History

(R.C., c. 40, s. 5; Code, s. 1301; Rev., s. 3987; C.S., s. 5266.)

§ 156-8. Earth from canal removed or leveled.

The earth excavated from the canal or ditch shall be removed away or leveled as nearly as may be with the surface of the adjacent land, unless the commissioners shall otherwise specially allow.

History

(R.C., c. 40, s. 7; Code, s. 1303; Rev., s. 3988; C.S., s. 5267.)

§ 156-9. No drain opened within 30 feet.

The proprietor of any swamp or flatlands through which a canal or ditch passes shall not have a right to open or cut any drain within 30 feet thereof but by the consent of the owner. Such proprietor, however, and other persons may cut into such canal or ditch in the manner hereinafter provided.

History

(R.C., c. 40, s. 8; Code, s. 1304; Rev., s. 3989; C.S., s. 5268.)

§ 156-10. Right to drain into canal.

Any person desirous of draining into the canal or ditch of another person as an outlet may do so in the manner hereinbefore provided, and in addition to the persons directed to be made parties, all others shall be parties through whose lands, canals, or ditches the water to be drained may pass till it shall have reached the furthest artificial outlet. And the privilege of cutting into such canal or ditch may be granted under the same rules and upon the same conditions and restrictions as are provided in respect to cutting the first canal or ditch: Provided, that no canal or ditch shall be allowed to be cut into another if thereby the safety or utility of the latter shall be impaired or endangered: Provided, further, that if such impairing and danger can be avoided by imposing on the petitioner duties or labor in the enlarging or deepening of such canal or ditch, or otherwise, the same may be done; but no absolute decree for cutting such second canal or ditch shall pass till the duties or work so imposed shall be performed and the effect thereof is seen, so as to enable the commissioners to determine the matter whether such second canal or ditch ought to be allowed or not: Provided, that any party to the proceeding may appeal from the judgment of the court rendered under this section to the superior court of the county, where a trial and determination of all issues raised in the pleadings shall be had as in other cases before a judge and jury.

History

(R.C., c. 40, s. 9; Code, s. 1305; 1887, c. 222; Rev., s. 3990; C.S., s. 5269; 1973, c. 108, s. 94.)

CASE NOTES

In a proceeding by plaintiff drainage corporation to levy assessments against the lands of respondents for the proportionate part of the expense for making necessary improvements, upon allegations that such lands drained into the corporation's canals and would be greatly benefited by the improvements, where it appeared that respondents' predecessor in title cut a large canal through his lands draining into the lands of the corporation, it would be presumed that respondents' predecessor in title acquired the right to cut into the canal of plaintiff pursuant to the provisions of this section, and the petition would be considered as a motion in that cause for the proper adjudication of the rights of the parties. Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).

Cited in Brooks v. Tucker, 61 N.C. 309 (1867); In re Atkinson-Clark Canal Co., 231 N.C. 131, 56 S.E.2d 442 (1949); Sawyer Canal Co. v. Keys, 234 N.C. 360, 67 S.E.2d 259 (1951).


§ 156-11. Expense of repairs apportioned.

Besides the damages which the commissioners may assess against the petitioner for the privilege of cutting into such canal or ditch, they shall assess and apportion the labor which the petitioner and defendants shall severally contribute towards repairing the canal or ditch into or through which the petitioner drains the water from his lands, and report the same to court; which, when confirmed, shall stand as a judgment of the court against each of the parties, his executors and administrators, heirs and assigns.

History

(R.C., c. 40, s. 10; Code, s. 1306; Rev., s. 3991; C.S., s. 5270.)

CASE NOTES

Report Failing to Assess and Apportion Labor Fatally Defective. - A commissioners' report under this section which fails to assess and apportion that part of the labor which is to be contributed by the defendants is fatally defective. Brooks v. Tucker, 61 N.C. 309 (1867).

Applied in Worthington v. Coward, 114 N.C. 289, 19 S.E. 154 (1894).

Cited in Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).


§ 156-12. Notice of making repairs.

Whenever the canals or ditches for the reparation of which more than one person shall be bound under the provisions of G.S. 156-11 shall need to be repaired, any of the persons so bound may notify the others thereof, and of the time he proposes to repair the same; and thereupon each of the persons shall jointly work on the same and contribute his proportion of labor till the same be repaired or the work cease by consent.

History

(R.C., c. 40, s. 11; Code, s. 1307; Rev., s. 3992; C.S., s. 5271.)

CASE NOTES

Cited in Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).


§ 156-13. Judgment against owner in default; lien.

In case the person so notified shall make default, any of the others may perform his share of labor and recover against him the value thereof, on a notice to be issued for such default, in which shall be stated on oath made before the clerk the value of such labor, and unless good cause to the contrary be shown on the return of the notice, the court shall render judgment for the same with interest and costs; which judgment shall be a lien upon the lands from the date of the performance of the work.

History

(R.C., c. 40, s. 12; Code, s. 1308; 1899, c. 396; Rev., s. 3993; C.S., s. 5272.)

CASE NOTES

Right of Landowner to Notice and Hearing. - Before any specific amount may be adjudged against a landowner as a lien on his land, he is entitled to be heard, after notice, as to whether the assessment made by the commissioners was unjust or oppressive. Adams v. Joyner, 147 N.C. 77, 60 S.E. 725 (1908).

Cited in Craft & Bergeson v. John L. Roper Lumber Co., 181 N.C. 29, 106 S.E. 138 (1921); Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).


§ 156-14. Subsequent owners bound.

All persons to whom may descend, or who may otherwise own or occupy lands drained by any canal or ditch, for the privilege of cutting which any labor for repairing is assessed, shall contribute the same, and shall be bound therefor to all intents and purposes, and in the same manner and by the same judgment as the original party himself would be if he occupied the land.

History

(R.C., c. 40, s. 13; Code, s. 1309; Rev., s. 3994; C.S., s. 5273.)

CASE NOTES

Applied in Norfleet v. Cromwell, 70 N.C. 634 (1874); Craft & Bergeson v. John L. Roper Lumber Co., 181 N.C. 29, 106 S.E. 138 (1921).

Cited in Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).


§ 156-15. Amount of contribution for repair ascertained.

Whenever there shall be a dam, canal, or ditch, in the repairing and keeping up of which two or more persons shall be interested and receive actual benefit therefrom, and the duties and proportion of labor which each one ought to do and perform therefor shall not be fixed by agreement or by the mode already in this Subchapter provided for assessing and apportioning such labor, any of the parties may have the same assessed and apportioned by applying to a magistrate, who shall give all parties at least three days' notice, and shall summon two disinterested freeholders who, together with the magistrate, shall meet on the premises and assess the damages sustained by the applicant, whereupon the magistrate shall enter judgment in favor of the applicant for damages or for work done on such ditch or lands.

History

(R.C., c. 40, s. 14; Code, s. 1310; 1889, c. 101; Rev., s. 3995; C.S., s. 5274; 1973, c. 108, s. 95.)

CASE NOTES

Constitutionality. - This section is constitutional and valid. Forehand v. Taylor, 155 N.C. 353, 71 S.E. 433 (1911).

A proceeding under this section is in effect a motion in the cause which can be brought forward from time to time, upon notice to all the parties to be affected, for orders in the cause, to promote the objects of the proceeding, the whole matter remaining in the control of the court. Staton v. Staton, 148 N.C. 490, 62 S.E. 596 (1908); Sawyer Canal Co. v. Keys, 234 N.C. 360, 67 S.E.2d 259 (1951).

Procedure for Enlarging or Deepening Canal. - The method by which the user of a canal by prescriptive right may enlarge or deepen it with an apportionment of the costs is provided by this section. Armstrong v. Spruill, 182 N.C. 1, 108 S.E. 300 (1921).

Liability for Damages. - Where the users of a canal by prescriptive right enlarge the same, and thereby place water upon the lower proprietor to his damage, they are liable therefor, and upon conflicting evidence, the issue should be submitted to the jury. Armstrong v. Spruill, 182 N.C. 1, 108 S.E. 300 (1921).

Action Dismissed for Noncompliance with Statute Not Bar to Second Action. - When damages were sought in an action before a justice of the peace (now magistrate) relating to drainage districts, etc., and the action was dismissed because there had been no contract or agreement between the parties and the requirements of the statute had not been met, the plaintiff was not thereby barred from proceeding to have the damages assessed and from bringing another action therefor, as the former judgment did not bar the second one. Forehand v. Taylor, 155 N.C. 353, 71 S.E. 433 (1911).

Applied in Porter v. Durham, 98 N.C. 320, 3 S.E. 832 (1887).

Cited in Craft & Bergeson v. John L. Roper Lumber Co., 181 N.C. 29, 106 S.E. 138 (1921).


§ 156-16. Petition by servient owner against dominant owner.

Any person owning lands lying upon any creek, swamp, or other stream not navigable, which are subject to inundation and which cannot be conveniently drained or embanked on account of the volume of water flowing over the same from lands lying above, and by draining the same the lands above will be benefited and better drained, such person may by petition apply to the superior court of the county in which the lands sought to be drained or embanked, or some part of such lands, lie, setting forth the particular circumstances of the case, the valuation of the lands to be drained or embanked, and what other lands above would be benefited, and who are the proprietors of such lands; whereupon a summons shall be served upon each of the proprietors, who are not petitioners, requiring them to appear before the court at a time to be named in the summons, which shall not be less than 10 days from the service thereof, and upon such day the petition shall be heard and the court shall appoint three persons as commissioners, who shall, before entering upon the discharge of their duties, be sworn to do justice between the parties.

History

(1889, c. 253; Rev., s. 4016; C.S., s. 5275.)

Local Modification. - Lenoir: 1891, c. 73; Rev., s. 4016.

CASE NOTES

Effect on G.S. 156-3. - This section does not repeal G.S. 156-3, but leaves in operation such of its provisions as are not repugnant to it. Worthington v. Coward, 114 N.C. 289, 19 S.E. 154 (1894).

For case holding that the procedure under this and the following sections is analogous to the general drainage law, that the proceedings are regarded as being kept alive for further orders without being retained on the docket, and that in the case at issue the original assessment did not constitute a bar to the motion to vacate and the assessment was properly set aside on the facts found, see Spence v. Granger, 204 N.C. 247, 167 S.E. 805 (1933).

Judgment Not Set Aside. - In an action brought for the drainage of lands under this and the following sections, the judgment upon motion thereafter would not be set aside merely upon the ground that a similar proceeding had been prosecuted to judgment between several of the parties. Adams v. Joyner, 147 N.C. 77, 60 S.E. 725 (1908).


§ 156-17. Commissioners to examine lands and make report.

The commissioners, or a majority of them, on a day of which each proprietor is to be notified at least five days, shall meet on the premises and view the land to be drained and the lands affected thereby, and shall determine and report whether the lands of the petitioner or petitioners ought to be drained exclusively by him or them, and if they are of the opinion that the same ought not to be drained exclusively at the expense of the petitioner or petitioners, they shall decide and determine the route of the canal, ditch, or embankment, the width thereof, and the depth and height, as the case may be, and the manner in which the same shall be cut or thrown up, considering all the circumstances of the case, and providing as far as possible for the effectual drainage of the petitioner's land, and the protection and benefit of the defendant's lands; and they shall apportion the labor to be done or assess the amount to be paid by each of the owners of the lands affected by such canal, ditch, or embankment, towards the construction and keeping the same in repair, and report the same to the court, which, when confirmed, shall stand as a judgment of the court against each of the parties, his executors, administrators, heirs and assigns.

History

(1889, c. 253, s. 2; Rev., s. 4017; C.S., s. 5276.)

Local Modification. - Beaufort, Lenoir: 1891, c. 73, s. 2; Rev., s. 4017; Pub. Loc. 1911, c. 545.

CASE NOTES

Cost of Work Not Required to Be Set Out in Report. - The cost of the work to be done in the drainage of lands is not required under this section, and cannot, for its uncertainty of amount, be set out in the report of the commissioners appointed. It is a compliance with the statutes when the portion of the work to be done by the landowners is set out. Adams v. Joyner, 147 N.C. 77, 60 S.E. 725 (1908).


§ 156-18. Cost of repairs enforced by judgment.

Whenever any such ditch, canal, or embankment shall need repairs or cleaning out, and any of the parties interested therein refuse to perform the labor apportioned to them, or refuse to contribute the amount assessed against them, the same shall be enforced in the manner hereinbefore provided for the joint repair of canals and ditches.

History

(1889, c. 253, s. 3; Rev., s. 4018; C.S., s. 5277.)

§ 156-19. Obstructing canal or ditch dug under agreement.

Where two or more persons have dug a canal or ditch along any natural drain or waterway under parol agreement, or otherwise, wherein all the parties shall have contributed to the digging thereof, if any servient or lower owner shall fill up or obstruct said canal or ditch without the consent of the higher owners and without providing other drainage for the higher lands, he shall be guilty of a Class 3 misdemeanor.

History

(1899, c. 255; Rev., s. 3375; C.S., s. 5278; 1993, c. 539, s. 1070; 1994, Ex. Sess., c. 24, s. 14(c).)

CASE NOTES

This section applies only where all the parties contributed under a valid agreement to the lawful digging of a ditch or canal. Porter v. Armstrong, 129 N.C. 101, 39 S.E. 799 (1901).


§ 156-20. Right of dominant owner to repair.

In the absence of any agreement for maintaining the efficiency of such ditch or canal, or should the servient owner neglect or refuse to clean out or aid in cleaning out the same through his lands, it shall be lawful for the dominant or higher owner, after giving three days' notice to the servient owner, to enter along such canal and not more than 12 feet therefrom and clean out or remove obstructions or accumulated debris therefrom at his own personal expense or without cost to the servient owner.

History

(1899, c. 255, s. 2; Rev., s. 4025; C.S., s. 5279.)

CASE NOTES

Where a person enlarges a canal on the lands of another, under a void proceeding, he is a trespasser, and cannot claim credit for money spent thereon. Porter v. Armstrong, 129 N.C. 101, 39 S.E. 799 (1901).

Cited in Elder v. Barnes, 219 N.C. 411, 14 S.E.2d 249 (1941).


§ 156-21. Canal maintained for seven years presumed a necessity; drainage assessments declared liens.

After a canal has been dug along any natural depression or waterway and maintained for seven years, it shall be prima facie evidence of its necessity, and upon application to the clerk of the superior court of any landowner who is interested in maintaining the same, it shall be the duty of the clerk of the superior court to appoint and cause to be summoned three disinterested and discreet freeholders, who, after being duly sworn, shall go upon the lands drained or intended to be drained by such canal, and after carefully examining the same and hearing such testimony as may be introduced touching the question of cost of canal, the amount paid, and the advantages and disadvantages to be shared by each of the parties to the action, shall make their report in writing to the clerk of the superior court stating the facts and apportioning the cost of maintaining such canal among the parties to the action, and the cost of the action shall be divided in the same ratio; and their report when approved shall be properly registered by the clerk and the said report or reports shall, when filed in the office of the clerk of the superior court, be a lien upon each tract of land embraced in said report or reports to the extent of the proportionate part of the costs stipulated in said report or reports as a charge against same, and shall have the effect and force of a judgment thereon, and such judgments shall be subject to execution and collection as in cases of other judgments.

History

(1899, c. 255, s. 3; Rev., s. 4026; 1917, c. 248, s. 1; C.S., s. 5280; 1931, c. 227, s. 1.)

CASE NOTES

Section to Be Construed to Carry Out Its Purposes. - The provisions of this section are necessary for the cultivation and improvements of lowlands required to be drained, and should be construed to carry into effect its beneficent purposes, when practicable. Ange & Forest v. Atlantic C.L.R.R., 159 N.C. 547, 75 S.E. 796 (1912).

In Connection with Other Sections of this Chapter. - This section should be construed in connection with the other sections of the Chapter relating to the drainage of lowlands. Ange & Forest v. Atlantic C.L.R.R., 159 N.C. 547, 75 S.E. 796 (1912).

"Ditch" and "Canal" Used Interchangeably. - In the Chapter relating to the drainage of lowlands, the terms "ditch" and "canal" are used indiscriminately to designate an artificial drain. Ange & Forest v. Atlantic C.L.R.R., 159 N.C. 547, 75 S.E. 796 (1912).

Artificial Drain as "Canal." - An artificial drain in some places from 3 to 5 feet wide and from 2 to 5 feet deep, made for the purpose of cultivating and improving lowlands by draining them, is a "canal" within the meaning of this section. Ange & Forest v. Atlantic C.L.R.R., 159 N.C. 547, 75 S.E. 796 (1912).

Contribution to Original Construction Not Prerequisite to Liability for Maintenance. - It is not necessary that the owner of lands lying along a drainage canal, within the meaning of this section, shall have contributed to its original construction to make him liable to assessments for its maintenance under the provisions of the statute. Ange & Forest v. Atlantic C.L.R.R., 159 N.C. 547, 75 S.E. 796 (1912).

Liability of Railroad for Maintenance of Canal. - While a railroad company may not be the absolute owner of lands in fee, it has the proprietorship and control of those constituting its rights-of-way; and when such lands are benefited by a canal which comes within the meaning of this section, the provision of the statute relative to the maintenance of the canal applies. Ange & Forest v. Atlantic C.L.R.R., 159 N.C. 547, 75 S.E. 796 (1912).

Applied in Craft & Bergeson v. John L. Roper Lumber Co., 181 N.C. 29, 106 S.E. 138 (1921).


§ 156-22. Supplemental assessments to make up deficiency; vacancy appointments of assessment jurors.

The freeholders, commissioners or jurors, appointed in any application or proceeding filed or instituted under G.S. 156-21 or any other section of Article 1 of this Chapter, are authorized and empowered during the establishment of and providing for the construction, maintenance and payment therefor, of such ditch, canal or drain, to make other and further assessments for the costs of establishment, construction and expense, when it shall be determined by the clerk of the court that the provisions in the former report for the payment thereof are insufficient, and that such supplementary reports shall be made on the same basis of an equitable and just proportion, as made in the former report, which report or reports shall be filed with the clerk of the superior court and have the same force and effect as the former or original report.

In case of death, resignation, removal or for any other cause there becomes a vacancy as to the freeholders, commissioners or jurors, appointed to carry out the provisions of the sections contained in this Chapter, the clerk of the superior court is authorized to fill such vacancy by the appointment of some disinterested freeholder in the county, and the said person so appointed to fill such vacancy shall qualify before the clerk of the superior court before entering upon his duties.

History

(1931, c. 227, s. 2.)

Local Modification. - Duplin: 1931, c. 227, s. 2.

CASE NOTES

Right of Interested Parties to Notice and Hearing. - Where drainage assessments are levied against lands under this and related sections, either original assessments or additional assessments to cover unforeseen expenses in the construction of the drainage ditch, the parties whose lands are assessed are entitled to notice and an opportunity to be heard. Spence v. Granger, 207 N.C. 19, 175 S.E. 824 (1934).


§ 156-23. Easement of drainage surrendered.

If any persons, or those claiming through or under them, who have cut any ditch or canal into which any other person has been permitted to drain land under any proceeding authorized in this Subchapter, shall desire to surrender their easement or right in such ditch or canal and be discharged from any judgment rendered and existing under such proceedings, such persons may on motion have such proceeding reinstated for hearing and file a petition therein setting forth such fact or any other grounds for relief thereunder, and upon proof satisfactory to the court that such petitioners have cut another ditch or canal which drains their lands formerly drained by the first ditch or canal, and have abandoned the use of it for any purpose of drainage, the court shall adjudge the easement or right of the petitioners surrendered and determined, and from that time the petitioners and their land shall forever be discharged and released from the judgment heretofore rendered in such former proceedings: Provided, however, that all parties then having an easement or right in such ditch or canal shall be served with notice of such petition 20 days before the hearing thereof.

History

(1887, c. 222, s. 3; Rev., s. 4027; C.S., s. 5281.)

§ 156-24. Obstructing drain cut by consent.

If any person shall stop or in any way obstruct the passage of the water in any ditch or canal having been cut through lands of any person by consent of the owner of said land, before giving the interested parties a reasonable time to comply with the mode of proceedings provided for the drainage of lowlands, he shall be guilty of a Class 3 misdemeanor.

History

(1891, c. 434; Rev., s. 3376; C.S., s. 5282; 1993, c. 539, s. 1071; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 156-25. Protection of canals, ditches, and natural drains.

If any person shall fell any tree in any ditch, canal, or natural drainway of any farm, unless he shall remove the same and put such ditch, canal, or natural drainway in as good condition as it was before such tree was so felled; or if any person shall stop up or fill in such ditch, canal, or drainway and thereby obstruct the free passage of water along the said ditch, canal, or drainway, unless the said person shall first secure the written consent of the landowner, and those damaged by such obstruction in said ditch, canal, or drainway, or unless such person so filling in and stopping up such ditch, canal, or drainway shall, upon the demand of the person so damaged, clean out and put the said ditch, canal, or drainway in as good condition as the same was before such filling in and stopping up of the said ditch, canal, or drainway happened, he shall be guilty of a Class 3 misdemeanor.

History

(1901, c. 478; Rev., s. 3382; C.S., s. 5283; 1993, c. 539, s. 1072; 1994, Ex. Sess., c. 24, s. 14(c).)

PART 2. PETITION UNDER AGREEMENT FOR CONSTRUCTION.

§ 156-26. Procedure upon agreement.

  1. Agreement; Names Filed. - Whenever a majority of the landowners or the persons owning three fifths of all the lands in any well-defined swamp or lowlands shall, by a written agreement, agree to give a part of the land situated in such swamp or lowlands as compensation to any person, firm, or corporation who may propose to cut or dig any main drainway through such swamp or lowlands, or shall, by written agreement, contract with any person, firm or corporation to cut or dig any main drainway through such swamp or lowlands, then the person, firm, or corporation so proposing to cut or dig such main drainway shall file with the clerk of the superior court of the county, or, if there be two or more counties, with the clerk of the superior court of either county in or through which the proposed canal or drainway is to pass, the names of the landowners, with the approximate number of acres owned by each to be affected by the proposed drainway who have entered into the written agreement with the person, firm, or corporation, together with a brief outline of the proposed improvement, and in addition thereto shall file with the clerk the names and addresses, as far as can be ascertained, of the landowners, with the number of acres owned by each of them to be affected by the proposed drainway, who have not made any agreement with the person, firm, or corporation proposing to do the improvement.
  2. Notice. - Upon the filing of such names, it shall be the duty of the clerk to forthwith issue a notice which shall be served by the sheriff to all landowners who have not made any agreement to appear before him at a certain date, which date shall be not less than 10 and not more than 20 days from the service of such notice, or, in lieu of the personal service hereinabove required, it shall be sufficient for the clerk to publish in a newspaper published in the county once a week for four weeks a notice to all landowners who have not made any agreement to appear before him at a certain date, which date shall be not less than 30 days and not more than 40 days from the first publication of notice, at which time and place the landowners shall state their objections to the proposed improvement, and in addition thereto make an estimate of the amount of damage that might be done to the land owned by each of them on account of the proposed drainway.
  3. Hearing; Viewers. - Upon the hearing it shall be the duty of the clerk of the superior court to forthwith appoint three disinterested persons, none of whom shall own land to be affected by such drainway, if requested by the person, firm, or corporation proposing to do the improvement, whose duty it shall be to familiarize themselves with the proposed improvement, view the premises of the landowners, estimating damages, and make an estimate themselves of the amount of damages that might accrue to the lands of each landowner filing objections on account of the proposed improvement, and report the same to the clerk of the superior court within 15 days from the date of their appointment.
  4. Report; Bond. - Immediately upon the filing of the reports the clerk of the superior court shall forthwith notify the person, firm, or corporation proposing to dig the drainway or canal of the estimated damages contained in the reports, and the person, firm, or corporation shall execute and deliver a bond in a surety company authorized to do business in the State of North Carolina in twice the sum total of the estimated amount of damages, which bond shall be payable to the clerk of the superior court and conditioned upon the payment to the landowners of the amount of damages that may be assessed in the manner hereinafter provided.
  5. Construction Authorized. - Upon the execution and delivery to the clerk of the said bond, the person, firm, or corporation so proposing to cut or dig such main drainway shall be and they are hereby authorized to proceed with the cutting or digging of the drainway through any lands in its proposed course, whether the owners of the land may have consented thereto or not, and the person, firm, or corporation so proposing to cut or dig the drainway shall have the proper and necessary right-of-way for that purpose and for all things incident thereto through any lands or timbers situated in such swamp or lowlands.

History

(1917, c. 273, s. 1; C.S., s. 5284; 1969, c. 1046.)

Editor's Note. - The provisions of this and the following sections under this Article supplant those of Session Laws 1915, Chapter 141. Session Laws 1915, Chapter 141 was held unconstitutional and void in Lang v. Carolina Land & Dev. Co., 169 N.C. 662, 86 S.E. 599 (1915), as a taking of private property without providing for just compensation to the private owners of lands whose consent had not been given.

CASE NOTES

Withdrawal of Petitioners. - Upon the return day set by the clerk of the court for the hearing of the landowners in a proposed drainage district, it may be shown by those opposed to the petition that some of those who signed the petition desired to withdraw, and that after eliminating their names the petitioners would not represent a majority of the landowners in the district, or of persons owning three fifths of the lands, as the statute requires. Armstrong v. Beaman, 181 N.C. 11, 105 S.E. 879 (1921).

Opinions of Attorney General

As to exemption of housing authority from fees, see opinion of Attorney General to the Honorable F. Crane, Commissioner of Labor, 41 N.C.A.G. 303 (1971).

§ 156-27. Recovery for benefits; payment of damages.

After the drainway herein provided for shall be completed the person, firm, or corporation cutting or digging the same shall be entitled to recover of the landowners owning that part of the land with reference to which no contract for compensating those cutting or digging the drainway may have been made, an amount equal to the benefits to accrue to such lands by reason of the drainway, and shall be required by the clerk of the superior court to pay to any landowner the amount of damages in excess of benefits which may be done to the land to be determined in the manner hereinafter provided: Provided, that the recovery from any owner of the land shall be limited to the benefits to accrue to that land owned by such person, and situated in such swamp or lowlands or adjacent thereto; and provided further, that the amount to be so recovered as herein provided for until fully paid shall be and constitute a lien upon such land, the lien to be in force regardless of who may own the land at the time the amount to be recovered as compensation for digging or cutting the drainway shall be determined.

History

(1917, c. 273, s. 2; C.S., s. 5285.)

§ 156-28. Notice to landowners; assessments made by viewers.

After the completion of the main drainway, upon the application of the person, firm, or corporation, or their heirs or assigns, digging or cutting the same, the clerk of the superior court of the county in which any land through which the drainway may pass is situated shall issue a notice to be served by the sheriff upon any person who may have failed to agree with the person, firm, or corporation digging or cutting such drainway, upon a compensation to be paid by the landowner for the digging or cutting of such drainway, notifying the landowner that on a certain day, which shall be named in the notice and not less than 20 days from the date of the issuing of the notice, the clerk of the superior court will appoint three competent and disinterested persons, one of whom may be a surveyor, and none of whom shall own land to be affected by the drainway, to view the land so drained and for which no compensation for the drainage may have been agreed upon as aforesaid, and report to the clerk of the superior court what amount shall be paid therefor by the various landowners who may have failed to arrange for and agree upon the compensation for the drainage as aforesaid, and the amount of damages in cases where the damages have exceeded the benefits, which shall be paid to the landowners by the person, firm, or corporation cutting or digging such canal or drainway. In making the appointment of the viewers the clerk of the superior court shall hear any objections which may be advanced by those interested to any of the persons the clerk may consider to be appointed as viewers, but the clerk shall name those whom he considers best qualified.

History

(1917, c. 273, s. 3; C.S., s. 5286.)

§ 156-29. Report filed; appeal and jury trial.

A report signed by two of the persons appointed as viewers shall be entered by the clerk as the report of the viewers. Any landowner affected by the report, and the person, firm, or corporation digging or cutting the drainway, has the right of appeal and the right to have any issue arising upon the report tried by a jury, provided exceptions shall be filed to the report within 20 days after the filing of the report with the clerk, in which exceptions so filed may be a demand for a jury trial. If a jury trial is demanded, the clerk shall transfer the proceedings to the civil-issue docket, and it shall be heard as other civil actions. If no jury trial is demanded, the clerk shall hear the parties upon the exceptions filed, and appeal may be had as in special proceedings except as modified by this section, but no jury trial may be had unless demanded as provided in this section.

History

(1917, c. 273, s. 4; C.S., s. 5287; 1999-216, s. 17.)

Cross References. - As to appeal in special proceedings, see G.S. 1-301.1 et seq.

CASE NOTES

Jurisdiction of Superior Court. - The superior court, upon certification of the opinion of the Supreme Court, has jurisdiction to retain the cause for hearing upon the appeal from the clerk's order, this section providing that appeals from the clerk in drainage assessment proceedings shall be the same as in special proceedings, and G.S. 1-276 [see now G.S. 1-301.1 et seq.] giving the superior court jurisdiction to hear and determine all matters in controversy upon appeal from the clerk in special proceedings. Spence v. Granger, 207 N.C. 19, 175 S.E. 824 (1934). See also, Flat Swamp, Lock's Creek & Evan's Creek Canal Co. v. McAlister, 74 N.C. 159 (1876).


§ 156-30. Confirmation of report.

Unless an appeal is taken, the clerk of superior court shall confirm the report of the viewers. If exceptions are filed and no jury trial is demanded, the clerk shall hear the exceptions and enter judgment as in other special proceedings. If the report is confirmed by the clerk because no exceptions or demand for a jury trial is filed, the judgment of confirmation is the judgment of the court. Any judgment entered against the person, firm, or corporation cutting or digging the drainway is a judgment against the person, firm, or corporation and against the surety on the bond required by G.S. 156-26.

History

(1917, c. 273, s. 5; C.S., s. 5288; 1999-216, s. 18.)

§ 156-31. Payment in installments.

The amount to be recovered from any person as compensation for digging or cutting the drainway after the amount shall be definitely determined as herein provided for, shall be payable in five equal annual installments, the first payable one year from the filing of the report of the viewers with the clerk of the superior court, and one payment on the same day of each year thereafter until the full amount be paid. The amount to be recovered from the person, firm, or corporation cutting or digging the drainway, on account of any damages in excess of benefits to the lands of any landowner, shall be payable in one installment which shall be due and payable one year from the filing of the report of the viewers with the clerk of the superior court.

History

(1917, c. 273, s. 6; C. S., s. 5289.)

ARTICLE 2. Jurisdiction in County Commissioners.

Sec.

§ 156-32. Petition filed; board appointed; refusal to serve misdemeanor.

Upon the petition of three citizens in any county to the county commissioners, petitioning for the draining of any creek, swamp, or branch, either upon the plea of health or to promote and advance the agricultural interest of the farmers who may own lands lying on such creek, swamp, or branch petitioned to be drained, the county commissioners shall within 10 days after the filing of such petition order the county surveyor to summon three disinterested freeholders, good and lawful men of intelligence and discretion, who shall constitute a board, and the county surveyor shall be the chairman of such board; and the chairman shall give all persons who may be interested in having such creek, swamp, or branch drained three days' notice of the time and place of the meeting of the board: Provided, the petitioners shall deposit with the county treasurer the sum of twenty-five dollars ($25.00) for the payment of current expenses not otherwise provided for in this Article. Any person duly summoned by the county surveyor to act as a commissioner for the drainage of any such creek, swamp, or branch, who shall refuse to serve, shall be guilty of a Class 3 misdemeanor.

History

(1887, c. 267; Rev., ss. 3379, 4011; C.S., s. 5290; 1993, c. 539, s. 1073; 1994, Ex. Sess., c. 24, s. 14(c).)

Local Modification. - Hyde: 1901, c. 166.

§ 156-33. Duty of board; refusal to comply with their requirements misdemeanor.

The board provided for in G.S. 156-32 shall meet at the call of the chairman and shall proceed to inspect and examine the lands as described in the petition to be drained, and the board shall have power to summon witnesses, administer oaths, and take testimony, and if the board decides that the lands specified in the petition shall be drained, either upon the plea of health or for the benefit of the farms lying on or contiguous to such watercourse, then the board shall select a place at which the ditch shall be begun. They shall also decide the depth and width of the ditch to be dug, and shall proceed to survey, locate, lay off, and mark the course of the ditch, and the board shall assign to the landowners the amount of the labor to be performed and the amount of money to be paid for the purpose of defraying the necessary expenses by each landowner in proportion to the amount of lands drained or pro rata benefits received by the drainage of such lands, and the board shall specify the time in which the work so assigned shall be completed: Provided, no one shall be required to commence on the work assigned to him until the person next below him shall have completed his work in accordance with the specifications of the board. If any person shall refuse to comply with any of the requirements of the board he shall be guilty of a Class 1 misdemeanor.

History

(1887, c. 267, ss. 2, 7; Rev., ss. 3377, 4012; C.S., s. 5291; 1993, c. 539, s. 1074; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 156-34. Report filed.

The board shall make a written report to the county commissioners showing all the acts and decisions of the board as to the length, depth, and width of the ditch, the names of all the owners of the lands that will be drained, and the amount of work to be performed and the amount of money to be paid by each person benefited by such drainage. But in case the board determines that the lands described in the petition shall not be drained, then the expenses of the board shall be paid out of the funds deposited with the county treasurer by the petitioners.

History

(1887, c. 267, s. 3; Rev., s. 4013; C.S., s. 5292.)

§ 156-35. Owners to keep ditch open.

All persons whose lands shall be drained under the provisions of this Article shall keep the ditch on their lands clear of all rafts of logs, brush, or any trash that will obstruct the flow of water through the ditch.

History

(1887, c. 267, s. 4; Rev., s. 4014; C.S., s. 5293.)

§ 156-36. Compensation of board.

The compensation of the board shall be as follows: The county surveyor shall receive three dollars ($3.00) per day and the other members shall receive one dollar and fifty cents ($1.50) per day while engaged in the duties imposed in this Chapter.

History

(1887, c. 267, s. 5; Rev., s. 4015; C.S., s. 5294.)

SUBCHAPTER II. DRAINAGE BY CORPORATION.

ARTICLE 3. Manner of Organization.

Sec.

§ 156-37. Petition filed in superior court.

Any proprietor in fee of swamplands, which cannot be drained except by cutting a canal through the lands of another or other proprietor in fee, situated at a lower level and which would also be materially benefited by the cutting of such canal, who desires that such canal be cut on the terms on which it is hereinafter allowed, may apply by petition, setting forth the facts, to the superior court of the county in which any of the lands through which the canal will pass may lie.

History

(1868-9, c. 164, s. 2; Code, s. 1311; Rev., s. 3996; C.S., s. 5295.)

CASE NOTES

Evidence Held Insufficient to Show Establishment of Drainage Corporation. - Where petitioners showed only the granting of an easement in response to a petition by an individual to be allowed to drain into an existing canal on the lands of another under the provisions of G.S. 156-2, 156-3 and 156-10, such evidence was insufficient to show the establishment of a drainage corporation under this section. In re Atkinson-Clark Canal Co., 231 N.C. 131, 56 S.E.2d 442 (1949).

Burden of Proof Where Drainage Assessment Challenged. - When the validity of a drainage assessment is challenged, the burden is upon the drainage district or corporation to show that it was created in substantial compliance with the applicable statutes and that the assessments were levied pursuant to and in compliance with the statutory provisions. In re Atkinson-Clark Canal Co., 231 N.C. 131, 56 S.E.2d 442 (1949).

Cited in Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).


§ 156-38. Commissioners appointed; report required.

On the establishment by the petitioner of his allegations, the court shall appoint three persons as commissioners who, having been duly sworn, shall examine the premises and inquire and report:

  1. Whether the lands of the petitioner can be conveniently drained otherwise than through those of some other person.
  2. Through the lands of what other persons a canal to drain the lands of the petitioner would properly pass, considering the interests of all concerned.
  3. A description of the several pieces of lands through which the canal would pass, and the present values of such portions of the pieces of lands as would be benefited by it, and the reasons for arriving at the conclusion as to the benefit.
  4. The route and plan of the canal, including its breadth, depth, and slope, as nearly as they can be calculated, with all other particulars necessary for calculating its cost.
  5. The probable cost of the canal and of a road on its bank, and of such other work, if any, as may be necessary for its profitable use.
  6. The proportion of the benefit (after a deduction of all damages) which each proprietor would receive by the proposed canal and a road on its bank if deemed necessary and in which each ought, in equity and justice, to pay toward their construction and permanent support.
  7. With their report they shall return a map explaining, as accurately as may be, the various matters required to be stated in their report.

History

(1868-9, c. 164, s. 3; Code, s. 1312; Rev., s. 3997; C.S., s. 5296.)

CASE NOTES

Constitutionality of Assessments. - An assessment made under the provisions of this Subchapter is constitutional and valid. Middle Canal Co. v. Whitley, 172 N.C. 100, 90 S.E. 1 (1916).

Collateral Attack on Assessment. - In an action to enforce payment of an assessment, when the assessment does not appear to be void on its face, it may not be collaterally attacked by defendant landowner. Middle Canal Co. v. Whitley, 172 N.C. 100, 90 S.E. 1 (1916).

Confirmation of Report as to Those Not Objecting. - Report of the commissioners, assessing persons for benefits accruing to their lands from the operations of plaintiff canal company, should have been confirmed by the court as to those defendants who did not object; but as to those who did object, the court should have proceeded to try the issues involved in the controversy. Lock's Creek Canal Co. v. McKeithan, 89 N.C. 52 (1883).

Right of Landowners to Notice. - Landowners whose interests might be affected under proceedings under the provisions of this Chapter are entitled to notice. Gamble v. McCrady, 75 N.C. 509 (1876).

Notice Held Sufficient. - It was immaterial whether or not landowner had notice of a meeting at which a committee was appointed to assess the lands in the district and determine the amount of each assessment, when the assessment was accordingly made, and was duly ratified and confirmed at a subsequent meeting regularly called and held in accordance with the statute, of which he had notice. Middle Canal Co. v. Whitley, 172 N.C. 100, 90 S.E. 1 (1916).

Cited in In re Atkinson-Clark Canal Co., 231 N.C. 131, 56 S.E.2d 442 (1949).


§ 156-39. Surveyor employed.

The commissioner may employ a surveyor to prepare the map required to accompany their report.

History

(1868-9, c. 164, s. 4; Code, s. 1313; Rev., s. 3998; C.S., s. 5297.)

§ 156-40. Confirmation of report.

If it appear that the lands on the lower level will be increased in value twenty-five percent (25%) or upwards by the proposed improvement, within one year after the completion thereof, and that the cost of making such improvement will not exceed three fourths of the present estimated value of the land to be benefited, and that the proprietors of at least one half in value of the land to be affected consent to the improvement, the court may confirm such report, either in full or with such modifications therein as shall be just and equitable.

History

(1868-9, c. 164, s. 5; Code, s. 1314; Rev., s. 3999; C.S., s. 5298.)

CASE NOTES

Prerequisites to Establishment of Drainage Corporation. - In order to establish a drainage corporation, it is necessary that a petition in conformity with G.S. 156-37 be filed, that commissioners be appointed and that they file a report in conformity with G.S. 156-38, and that there be an adjudication and confirmation of the report. It is only after such confirmation that the corporation may be declared to exist and may proceed to organize and levy assessments. In re Atkinson-Clark Canal Co., 231 N.C. 131, 56 S.E.2d 442 (1949).


§ 156-41. Proprietors become a corporation.

Upon a final adjudication, confirming the report, the proprietors of the several pieces of land adjudged to be benefited by the improvement shall be declared a corporation, of which the capital stock shall be double the estimated cost of the improvements, and in which the several owners of the land adjudged to be benefited shall be corporators, holding shares of stock in the proportions in which they are adjudged liable for the expense of making and keeping up the improvement.

History

(1868-9, c. 164, s. 6; Code, s. 1315; Rev., s. 4000; C.S., s. 5299.)

CASE NOTES

Cited in In re Atkinson-Clark Canal Co., 231 N.C. 131, 56 S.E.2d 442 (1949).


§ 156-42. Organization; corporate name, officers and powers.

The clerk of the court of the county in which the proceeding is pending or any corporator, who is a petitioner, may call a meeting of the corporators, at which meeting the corporators shall choose a name for the corporation, unless the commissioners selected the name, elect a president, vice-president, secretary and treasurer, but said officers shall be chosen or elected from the corporators who are petitioners in the proceeding; and they shall also choose or elect a board of directors and they shall be chosen or elected from the corporators who are petitioners in the proceeding. The corporators shall also make all bylaws and regulations, not contrary to law, which may be necessary and proper for effecting the purpose of the corporation, but said duty may be delegated to the board of directors. They shall fix the number of shares of stock, and assign to each proprietor or corporator his proper number, but this duty and right may be delegated to and done by the board of directors. The board of directors shall have such powers as are generally given to directors under the corporation law of the State; and they shall assess the sums or amount which shall be paid by each proprietor or corporator in conformity with and in compliance with the report of the commissioners on which the corporation is based. When said assessments against said proprietors or corporators and their lands affected are duly certified to the clerk of the superior court of the county in which such proceeding was instituted, the same shall be passed upon by the clerk of court and when approved by the clerk, said assessments shall become judgments against the several proprietors, corporators and owners so assessed, and the same shall be liens on the lands of the owners or corporators against whom said assessments were made and judgments entered, subject only to taxes, but said judgments shall be judgments in rem only. The board of directors will also have power, if they deem it proper, to fix and prescribe the time, mode and manner of payment; and do such other things as are necessary for the construction, enlargement and keeping up or maintaining said canal and improvement. In every meeting of the corporators or stockholders, each proprietor or corporator shall have one vote for each share of stock owned by him.

History

(1868-9, c. 164, s. 7; Code, s. 1316; Rev., s. 4001; C.S., s. 5300; 1939, c. 180, s. 1.)

CASE NOTES

Cited in In re Atkinson-Clark Canal Co., 231 N.C. 131, 56 S.E.2d 442 (1949); In re Atkinson-Clark Canal Co., 234 N.C. 374, 67 S.E.2d 276 (1951).


§ 156-43. Incorporation of canal already constructed; commissioners; reports.

Whenever the proprietors of any canal already cut shall desire to become incorporated, any number of the proprietors, not less than one third in number, may file their petition before the clerk of the superior court of the county in which the canal is located, or in either county, where the canal may be located in more than one county, setting forth the names of the proprietors, the length and size of the canal, the names of the owners of land draining in such canal, and the quantity of land tributary thereto. And upon filing the petition, summons shall issue to all parties having an easement in the canal, returnable as in other special proceedings; upon the return thereof, or upon a day fixed by the clerk for hearing same, all owners of the canal may become corporators therein, and upon failure of any to avail themselves of that right, they shall not be entitled to become corporators, except under such bylaws and regulations as such corporation shall make and declare. But those who fail to avail themselves of the benefit of this Subchapter shall not be deprived of their easement in the canal, but shall enjoy the same upon payment to the corporation of the assessment made upon them pro rata with the corporators; such assessment shall be made on the land tributary to the canal and apportioned pro rata to each owner thereof; it shall be made by the corporation on 10 days' notice to each owner of the land, under such rules and regulations as the bylaws may prescribe; but any person dissatisfied therewith shall have the right to appeal to a jury at the regular term of the superior court of the county, and the amount of damages assessed shall be a first lien on the land of the owner against whom judgment shall be rendered.

Upon the return date of the summons or on the hearing by the clerk as provided in this section, the clerk of the court may appoint three persons as commissioners, who having been duly sworn shall examine the premises and inquire and report:

  1. The route and plan of the canal, including the breadth, depth and slope as nearly as they can be calculated, with all other particulars necessary for calculating the cost of enlarging and improving said canal.
  2. The probable cost of the improvement and enlargement of said canal.
  3. The proportion which each proprietor or corporator ought in equity and justice to pay toward the enlargement, improvement and permanent support and upkeep of said canal.
  4. With their report they shall return a map explaining as accurately as may be, the various matters required and necessary in aid or explanation of their report.
  5. The said report shall be heard and determined as other reports in special proceedings, and if approved by the clerk, such proprietors shall become a body corporate or a corporation.
  6. A meeting of the corporators may be called by the clerk of court or by any corporator or proprietor who is a petitioner in the proceeding, and at such meeting a president, vice-president, secretary and treasurer shall be elected from the proprietors or corporators who are petitioners; and also a board of directors shall be elected from the proprietors or corporators who are petitioners in the proceeding.
  7. The board of directors shall assess the sum or amount which shall be paid by each proprietor or corporator in conformity and compliance with the report of the commissioners on which the corporation was based. When said assessments against said proprietors or corporators and their lands affected are duly certified to the clerk of the superior court of the county in which said proceeding was pending and instituted, the same shall be passed upon by the clerk of court, and when approved by the clerk, said assessments shall become judgments against the several proprietors or corporators so assessed, and the same shall be liens on the lands of the owners or corporators against whom said assessments were made and judgments entered, subject only to taxes, but said judgments shall be judgments in rem only. The board of directors will also, if they deem it proper, fix and prescribe the time, manner and mode of payment.

History

(1889, c. 380; 1901, c. 670; Rev., s. 4008; C.S., s. 5301; 1939, c. 180, s. 2.)

CASE NOTES

Statutory provisions determine the property liable to drainage assessment. Hence, to constitute a valid assessment the particular land against which it is levied must come within the meaning of this section. In re Westover Canal, 230 N.C. 91, 52 S.E.2d 225 (1949).

Assessment to Be Levied Only on Property Benefited. - The general rule is well settled that a special assessment for the purpose of drainage can be levied only upon property benefited by the improvement. It is said that the legal theory underlying drainage assessments is one of benefit increasing the value of the land and justifying its assessment. In re Westover Canal, 230 N.C. 91, 52 S.E.2d 225 (1949).

Relief Where Tract Not Benefited by Inclusion in District. - Where it clearly appears that a canal will neither drain a particular tract of land nor render it more accessible, there is no valid reason for including it in the district, and if it is nevertheless arbitrarily made a part thereof, the owner may obtain relief. In re Westover Canal, 230 N.C. 91, 52 S.E.2d 225 (1949).

Meaning of "Land Tributary to the Canal". - As used in this section, the phrases "land tributary thereto" and "land tributary to the canal" mean land from which water drains or flows into the canal. In re Westover Canal, 230 N.C. 91, 52 S.E.2d 225 (1949).

Burden of Proof on Appeal. - This section gives to any person dissatisfied with an assessment the right to appeal to a jury at a regular term of the superior court of the county. In such event, it would seem that the authority undertaking to establish the assessment would still have the burden of proving the provisions of the statute essential to the creation of a valid assessment. It may be that the order of the clerk of the superior court approving and confirming the assessment as proposed by the commissioners and the board of directors of the corporation creates a prima facie case. But a prima facie case, or prima facie evidence, does not change the burden of proof. In re Westover Canal, 230 N.C. 91, 52 S.E.2d 225 (1949).

In order to constitute a valid drainage assessment, it is necessary that the land assessed drain or flow into the canal, and therefore on appeal to the superior court on a landowner's exceptions to the order of the clerk confirming assessments as proposed by the commissioners, the drainage district has the burden of proving the number of acres of land owned by the exceptor which drain into the canal, and what amount said land should be assessed per acre. The fact that the exceptor first introduced evidence, presumably on the theory that the order of the clerk made out a prima facie case, does not alter the rule as to the burden of proof. In re Westover Canal, 230 N.C. 91, 52 S.E.2d 225 (1949).

Finality of Judgment of Clerk of Superior Court. - A judgment entered by a clerk of the superior court in a special proceeding under this section will stand as a judgment of the court, if not excepted to and reversed or modified on appeal, as allowed by law. In re Atkinson-Clark Canal Co., 234 N.C. 374, 67 S.E.2d 276 (1951).

Where the clerk's decision was erroneous, and the petitioner undertook to appeal therefrom, but the appeal was dismissed in the superior court, and notice of appeal was given to the Supreme Court, but the appeal was not perfected, the judgment of the clerk of the superior court was as final and effective as if no appeal therefrom had been attempted. In re Atkinson-Clark Canal Co., 234 N.C. 374, 67 S.E.2d 276 (1951).

In an action to compel corporate defendant to purchase property from plaintiffs in accordance with purchase contract, where defendant alleged that a judgment creating a canal corporation created a lien on the subject property which constituted an encumbrance unsatisfactory to it and rendered plaintiffs' title unmarketable, the trial court erred in directing a verdict in defendant's favor on this ground, since the judgment creating a canal corporation was not entered into evidence at trial; there was no indication in the record on appeal that the trial court took judicial notice of the judgment; a copy of the judgment was not included in the record on appeal; and there was thus no evidence of a canal constituting an encumbrance on the subject property. Waters v. North Carolina Phosphate Corp., 50 N.C. App. 252, 273 S.E.2d 517, cert. denied, 302 N.C. 402, 279 S.E.2d 357 (1981).


ARTICLE 4. Rights and Liabilities in the Corporation.

Sec.

§ 156-44. Shares of stock annexed to land.

The ownership of the shares of stock is indissolubly annexed to the ownership of the pieces of land adjudged to be benefited by the improvement; and such shares, or a part thereof proportionate to the area of such land that may descend or be conveyed for any longer time than three years, shall, upon such descent or conveyance, descend and pass with the land, even although such shares be not mentioned in the deed of conveyance, and although their transfer be forbidden by such deed so that every owner of such land in possession, except a tenant for a term of years, not exceeding three, and every owner in reversion or remainder after a term not exceeding three years, shall, during his ownership, be entitled to all the rights and privileges and be subject to all the obligations and burdens of a corporator. Every attempted sale of shares otherwise than as annexed to the land shall be void.

History

(1868-9, c. 164, s. 8; Code, s. 1317; Rev., s. 4002; C.S., s. 5302.)

CASE NOTES

Cited in Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).


§ 156-45. Shareholders to pay assessments.

Every corporator shall be bound to obey the lawful bylaws of the company, and pay all dues lawfully assessed on him: Provided, he shall in no case pay more than his proportion of the expenses as fixed by this Subchapter; and such dues may be collected in the corporate name in any court having jurisdiction; and every assessment duly docketed in the county where the land to be affected lies shall be a lien on the lands of the debtor which are connected with the corporation from the date of such docketing.

History

(1868-9, c. 164, s. 9; Code, s. 1318; Rev., s. 4003; C.S., s. 5303.)

Cross References. - As to collection of assessments out of other property of delinquent, see G.S. 156-106.

CASE NOTES

An assessment made upon landowners constitutes a lien upon the lands therein and is enforceable by proceedings in rem in a court having equitable jurisdiction. Personal judgment against the defendant may not be had, as in actions arising ex contractu. Middle Canal Co. v. Whitley, 172 N.C. 100, 90 S.E. 1 (1916); Long Creek Drainage Dist. v. Huffstetler, 173 N.C. 523, 92 S.E. 368 (1917).

Which Is Enforceable by Execution. - Assessments made in accordance with the statute become liens on the lands when properly certified by the officers of the corporation and docketed in the office of the superior court of the proper county; and executions may issue directing that such lands be sold to pay the assessments and the costs. Middle Canal Co. v. Whitley, 172 N.C. 100, 90 S.E. 1 (1916).

A justice of the peace (now magistrate) had no jurisdiction over actions to enforce payment of such assessments, and such actions would be dismissed upon motion to nonsuit when brought in a justice's court. Middle Canal Co. v. Whitley, 172 N.C. 100, 90 S.E. 1 (1916); Long Creek Drainage Dist. v. Huffstetler, 173 N.C. 523, 92 S.E. 368 (1917).

Review of Assessments by Certiorari. - The courts will review by writ of certiorari the action of the drainage corporation in making illegal assessments and enjoin such assessments as are absolutely void upon their face. Middle Canal Co. v. Whitley, 172 N.C. 100, 90 S.E. 1 (1916).

An assessment that does not appear to be void on its face cannot be attacked collaterally. Middle Canal Co. v. Whitley, 172 N.C. 100, 90 S.E. 1 (1916).


§ 156-46. Payment of dues entitles to use of canal.

Every corporator paying his dues legally assessed without regard to the number of his shares, shall be entitled to the full and free use of the canal for drainage and navigation, and of the road for passage and transportation. Bylaws may be made to regulate these rights, but not so as to produce an inequality.

History

(1868-9, c. 164, s. 10; Code, s. 1319; Rev., s. 4004; C.S., s. 5304.)

§ 156-47. Rights of infant owners protected.

If any proprietor whose lands are adjudged to be benefited by a canal shall be an infant, no process shall be issued against him during his minority, or within 12 months thereafter, to enforce payments of any assessment, and he may, at any time within such 12 months, apply to have any order, judgment, or decree made against him set aside as to him. If the infant or his guardian shall, during his minority, and the 12 months next thereafter, pay the dues assessed on him, he shall have all the rights and privileges of corporator, to be exercised through his guardian. If the infant shall fail to pay, he shall not have any such rights, but if no action to set aside the judgment of the court creating the corporation shall have been brought by him as aforesaid, or upon the decision of such action against him, he shall be entitled to receive his proper share of stock and to possess all the rights and be bound by all the liabilities of a corporator, including a liability for assessments made during his minority, but not for interest on such, nor for any penalty for their prior nonpayment.

History

(1868-9, c. 164, s. 11; Code, s. 1320; Rev., s. 4005; C.S., s. 5305.)

§ 156-48. Compensation for damage to lands.

If any proprietor of lands shall be damaged by any improvement proposed, the commissioners shall so report, and he shall be entitled to be compensated as may be just by the proprietor whose lands are benefited in proportion to the benefit to them respectively; but in estimating such damages the benefit shall be deducted, and such proprietor shall be entitled to all the rights and privileges of a corporator as respects the use of the improvement, but shall not be entitled to a vote, or be bound for the assessment.

History

(1868-9, c. 164, s. 12; Code, s. 1321; Rev., s. 4006; C.S., s. 5306.)

§ 156-49. Dissolution of corporation.

If, from any cause, the canal or other improvement shall become or shall prove to be valueless, any corporator may apply as is provided in other cases of special proceedings, and the court may dissolve the corporation created in connection with it.

History

(1868-9, c. 164, s. 13; Code, s. 1322; Rev., s. 4007; C.S., s. 5307.)

§ 156-50. Laborer's lien for work on canal.

Whenever work or repair shall be done on such canal and any of the parties owning lands liable to be assessed for such work or repairs shall fail or refuse to pay the amount assessed upon their land, then and in that event the laborers performing such work shall have a lien upon such land to the extent of the amount assessed against the same by the corporation, and such lien may be enforced in the same manner as provided by the laws of this State for the enforcement of laborers' lien.

History

(1899, c. 600, s. 2; Rev., s. 4009; C.S., s. 5308.)

§ 156-51. Penalty for nonpayment of assessments.

Whenever any person whose lands have been adjudged liable to contribute to the maintenance or repair of such canal shall fail or refuse to pay the amount assessed against his land for such maintenance or repair for 30 days after such payment has been demanded by the company, then the company may give such person notice in writing of its intention to cut off his right of drainage into the canal, and if such person shall still neglect and refuse to pay such assessment for 30 days after such notice, then the company may proceed to so obstruct and dam up the ditches of such delinquent as will effectually prevent his draining in the canal.

History

(1899, c. 600, s. 3; Rev., s. 4010; C.S., s. 5309.)

CASE NOTES

Applicability of Section. - The provisions of this section providing for a penalty for nonpayment of assessments relate only to the remedy available where incorporators fail and refuse to pay assessments duly levied. Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).

In a proceeding by drainage corporations to have lands of respondents assessed for improvements, upon allegations that respondents were not members of the corporation but that nevertheless their lands drained into the canals and would be materially benefited by the improvements, it was held that respondents' contention that the sole remedy of petitioners was under the provisions of this section to construct dams to prevent water from draining from respondents' lands into the canals was untenable, since the provisions of this section were inapplicable to such proceeding, being applicable solely as a remedy where incorporators fail and refuse to pay assessments duly levied. Sawyer Canal Co. v. Keys, 232 N.C. 664, 62 S.E.2d 67 (1950).

Cited in Sawyer Canal Co. v. Keys, 234 N.C. 360, 67 S.E.2d 259 (1951).


§ 156-52. Corporation authorized to issue bonds.

The corporations organized under this Subchapter are authorized to issue bonds to such an amount and in such denomination as they may elect, payable at such times as may be provided, and to sell the same at not less than par, the proceeds of the sale of such bonds to be used for the payment of the costs of survey and construction and maintenance of the canal. The bonds shall constitute a lien upon the lands drained or improved by the canal as described in the reports of the commissioners.

History

(1908, c. 75, s. 1; C.S., s. 5310.)

§ 156-53. Payment of bonds enforced.

Upon default of the payment of the interest or principal of such bonds, the holders of the bonds of the corporations organized under this Subchapter shall have a right to enforce the lien created by G.S. 156-52 by civil actions in the superior courts of the State.

History

(1908, c. 75, s. 2; C.S., s. 5311.)

SUBCHAPTER III. DRAINAGE DISTRICTS.

ARTICLE 5. Establishment of Districts.

Sec.

§ 156-54. Jurisdiction to establish districts.

The clerk of the superior court of any county in the State of North Carolina shall have jurisdiction, power and authority to establish levee or drainage districts either wholly or partly located in his county, and which shall constitute a political subdivision of the State, and to locate and establish levees, drains or canals, and cause to be constructed, straightened, widened or deepened, any ditch, drain or watercourse, and to build levees or embankments and erect tidal gates and pumping plants for the purpose of draining and reclaiming wet, swamp or overflowed land; and it is hereby declared that the drainage of swamplands and the drainage of surface water from agricultural lands and the reclamation of tidal marshes shall be considered a public use and benefit and conducive to the public health, convenience and welfare, and that the districts heretofore and hereafter created under the law shall be and constitute political subdivisions of the State, with authority to provide by law to levy taxes and assessments for the construction and maintenance of said public works.

History

(1909, c. 442, s. 1; C.S., s. 5312; 1921, c. 7.)

Cross References. - As to construction of drainage law, see G.S. 156-135.

As to application to the State Soil and Water Conservation Commission for grants for nonfederal costs relating to certain small watershed projects authorized under federal law, see G.S. 139-53 et seq.

Editor's Note. - For act relating to Scuppernong Drainage District in Washington County, see Session Laws 1947, c. 934.

Legal Periodicals. - For note on disposition of diffused surface waters in North Carolina, see 47 N.C.L. Rev. 205 (1968).

CASE NOTES

Constitutionality. - This and the following sections of this Subchapter are constitutional. Sanderlin v. Luken, 152 N.C. 738, 68 S.E. 225 (1910); In re Big Cold Water Creek Drainage Dist., 162 N.C. 127, 78 S.E. 14 (1913); Shelton v. White, 163 N.C. 90, 79 S.E. 427 (1913); Banks v. Lane, 170 N.C. 14, 86 S.E. 713 (1915), petition for rehearing denied, 171 N.C. 505, 88 S.E. 754 (1916); Lower Creek Drainage Comm'rs v. Mitchell, 170 N.C. 324, 87 S.E. 112 (1915); Beaufort County Lumber Co. v. Drainage Comm'rs, 174 N.C. 647, 94 S.E. 457 (1917).

Vested Rights Not Affected by 1921 Act. - Where the rights of landowners in the Mattamuskeet Drainage District were determined in a court having jurisdiction as to assessments in proportion to the benefits conferred, they were not affected by the subsequent amendment of 1921, for such would be to impair the vested rights of those whose property had been assessed by the final judgment. O'Neal v. Mann, 193 N.C. 153, 136 S.E. 379 (1927).

The proceeding in forming a drainage district under the original act was judicial and not administrative, and the 1921 amendment could not affect vested rights of landowners acquired under orders, judgments or decrees made in pursuance of the powers conferred by the original act. Broadhurst v. Board of Comm'rs, 195 N.C. 439, 142 S.E. 477 (1928).

The drainage act, with its various amendments, is a statewide public statute. Nesbit v. Kafer, 222 N.C. 48, 21 S.E.2d 903 (1942).

Public Purposes of Subchapter Recognized. - This Subchapter, authorizing the establishment of certain levee or drainage districts, which presents a scheme for the drainage of lowlands in which the public of the locality is generally interested, which is at once comprehensive, adequate and efficient, and in which the rights of all persons to be affected have been fully considered and protected, is not objectionable on the ground that it is for the benefit of private landowners and not for public purposes. Sanderlin v. Luken, 152 N.C. 738, 68 S.E. 225 (1910).

This Subchapter adopts a system for the cooperation of landowners in the drainage of lands by forming drainage districts, which are to become quasi-public corporations, for the purpose of improving the health of the district and the fertility of the lands, under which the lands are assessed in proportion to the benefits derived and an organization is effected in each district to execute and maintain a system of drainage. In re Big Cold Water Creek Drainage Dist., 162 N.C. 127, 78 S.E. 14 (1913).

Basis of Legislative Authority. - The authority of the legislature to provide for the creation of levee and drainage districts is based upon the police power, the right of eminent domain and the taxing power. Shelton v. White, 163 N.C. 90, 79 S.E. 427 (1913).

The drainage of swamps and of surface water from agricultural lands in a drainage district is of public benefit and conducive to the public health, etc., thus falling within the police power; and proceedings thereunder are in the exercise of the right of eminent domain. Taylor v. Richardson, 176 N.C. 217, 96 S.E. 1027 (1918).

Clerk's Authority Not a Delegation of Legislative Power. - The authority and powers conferred by this Subchapter upon the clerk of the court do not constitute a delegation of legislative power and duty to the judicial department of the State prohibited by the Constitution, the powers and duties conferred being of a judicial nature in relation to the prescribed proceedings to be instituted for the establishment of drainage districts. Sanderlin v. Luken, 152 N.C. 738, 68 S.E. 225 (1910).

Drainage districts created pursuant to this Subchapter are quasi-municipal corporations. In re Albemarle Drainage Dist., Beaufort County No. 5, 255 N.C. 338, 121 S.E.2d 599 (1961).

Altering Boundaries Only as Permitted by Statute. - Municipal or quasi-municipal corporations created and having their boundaries fixed by statutory formula can alter their boundaries only as permitted by statute. In re Albemarle Drainage Dist., Beaufort County No. 5, 255 N.C. 338, 121 S.E.2d 599 (1961).

Drainage District Subject to Open Meetings Requirements. - As a political subdivision of the State, organized pursuant to the provisions of this section with quasi-judicial and administrative authority, plaintiff drainage district was subject to the open meetings requirements of G.S. 143-318.10. Northampton County Drainage Dist. No. 1 v. Bailey, 92 N.C. App. 68, 373 S.E.2d 560 (1988), modified on other grounds, 326 N.C. 742, 392 S.E.2d 352 (1990).

Pendency of Proceedings as Notice as to All Lands in District. - The pendency of a proceeding to lay off a drainage district under the provisions of the act is notice as to all the lands embraced in the district. Newby & White v. Board of Drainage Comm'rs, 163 N.C. 24, 79 S.E. 266 (1913).

Map Held Sufficient Notice to Subsequent Purchasers. - Where, in a proceeding in Beaufort County, a drainage district comprising lands in both Beaufort and Craven Counties was duly created and organized under this and the following sections, and assessment rolls, showing assessments against each tract of land in the district, were made and filed in each county, such assessments, as they became due, constituted liens upon the lands within the district to which they related, and it was error for the court to dismiss an action in the nature of a mortgage foreclosure, for the collection of such drainage assessments against lands in Craven County, even where the assessment rolls for Craven County had been removed and there was left in that county no other record relating to the drainage district except a map on which were shown the boundaries of the several tracts of land within the district in Craven County, as the map itself was sufficient notice to a subsequent purchaser of the proceedings, including the assessment rolls filed in Beaufort County. Nesbit v. Kafer, 222 N.C. 48, 21 S.E.2d 903 (1942).

Validity of a district laid off according to the drainage acts cannot be collaterally attacked. Newby & White v. Board of Drainage Comm'rs, 163 N.C. 24, 79 S.E. 266 (1913); Banks v. Lane, 170 N.C. 14, 86 S.E. 713 (1915), petition for rehearing denied, 171 N.C. 505, 88 S.E. 754 (1916).

Proceedings Upheld. - Proceedings for the establishment of a drainage district under this Article, and bonds to be issued therefor, would not be held as defective because further steps were not taken for several years after they had been commenced, the court holding that they were still pending, and because of the fact that the engineer and viewers did not file a profile map showing the surface of the ground, bottom grades, etc., at the time of the final report, as required by G.S. 156-69, where this was later done upon order of the board of drainage commissioners, and otherwise the provisions of the statutes had been strictly followed. Oden v. Bell, 185 N.C. 403, 117 S.E. 340 (1923).

As to right of receiver to intervene and become party to suit in federal court, see Board of Drainage Comm'rs v. Lafayette Southside Bank, 27 F.2d 286 (4th Cir. 1928).

As to construction of drainage act for Mattamuskeet Lake, see Carter v. Board of Drainage Comm'rs, 156 N.C. 183, 72 S.E. 380 (1911).

Cited in Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990).


§ 156-55. Venue; special proceedings.

When the lands proposed to be drained and created into a drainage district are located in two or more counties, the clerk of the superior court of either county has the jurisdiction conferred by this Subchapter. Venue is in that county in which the petition is first filed. The law and the rules regulating special proceedings apply in the proceeding, except as modified by this Subchapter. The proceedings may be ex parte or adversary.

History

(1909, c. 42, ss. 2, 38; C.S., s. 5313; 1999-216, s. 19.)

CASE NOTES

Proceedings to form a drainage district under this Subchapter are regarded as proceedings in rem. Staton v. Staton, 148 N.C. 490, 62 S.E. 596 (1908); Banks v. Lane, 170 N.C. 14, 86 S.E. 713 (1915), petition for rehearing denied, 171 N.C. 505, 88 S.E. 754 (1916); Taylor v. Richardson, 176 N.C. 217, 96 S.E. 1027 (1918).


§ 156-56. Petition filed.

A petition signed by a majority of the resident landowners in a proposed drainage district or by the owners of three fifths of all the land which will be affected or assessed for the expense of the proposed improvements may be filed in the office of the clerk of the superior court of any county in which a part of the lands is located, setting forth that any specific body or district of land in the county and adjoining counties, described in such a way as to convey an intelligent idea as to the location of such land, is subject to overflow or too wet for cultivation, and the public benefit or utility or the public health, convenience or welfare will be promoted by draining, ditching, or leveeing the same or by changing or improving the natural watercourses, and setting forth therein, as far as practicable, the starting point, route, and terminus and lateral branches, if necessary, of the proposed improvement.

The petition will also show whether or not the proposed drainage is for the reclamation of lands not then fit for cultivation or for the improvement of land already under cultivation. It shall also state that, if a reclamation district is proposed to be established, such lands so reclaimed will be of such value as to justify the reclamation.

History

(1909, c. 442, s. 2; C.S., s. 5314; 1921, c. 76; Pub. Loc. 1923, c. 88, s. 2; 1925, c. 85; 1927, c. 98.)

Local Modification. - Edgecombe: 1937, c. 278; 1939, c. 7; Halifax: 1939, c. 227; Hertford: 1939, c. 371; Iredell: 1925, c. 144; Nash: 1939, c. 376; Northampton: 1939, c. 227; Pitt: 1925, c. 205; Robeson: 1925, c. 144; Rowan: 1925, c. 144.

Cross References. - For distinction between reclamation districts and improvement districts, see G.S. 156-62(5).

CASE NOTES

This is a flexible proceeding, and is to be modified and molded by decrees from time to time to promote the objects of the proceeding. Adams v. Joyner, 147 N.C. 77, 60 S.E. 725 (1908); Staton v. Staton, 148 N.C. 490, 62 S.E. 596 (1908); In re Lyon Swamp Drainage Dist., 175 N.C. 270, 95 S.E. 485 (1918).

Assent of Statutory Number of Owners Sufficient. - It is not necessary that every owner of land within a drainage district should have assented to its formation when the statutory number thereof have done so. Taylor v. Richardson, 176 N.C. 217, 96 S.E. 1027 (1918).

Property Must Be Described. - One of the essentials of the proceeding is that the property sought to be charged shall be identified by description in the proceedings. Dover Lumber Co. v. Board of Comm'rs, 173 N.C. 117, 91 S.E. 714 (1917).

Applied in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962).

Cited in In re Albemarle Drainage Dist., Beaufort County No. 5, 255 N.C. 338, 121 S.E.2d 599 (1961).


§ 156-57. Bond filed and summons issued.

Upon filing with the petition a bond for the amount of fifty dollars ($50.00) per mile for each mile of the ditch or proposed improvement, signed by two or more sureties or by some lawful and authorized surety company, to be approved by the clerk of superior court, conditioned for the payment of all costs and expenses incurred in the proceeding in case the court does not grant the prayer of the petition, the clerk, shall at any time thereafter, issue summons to be served on all the defendant landowners, who have not joined in the petition and whose lands are included in the proposed drainage district. The summons may be served by publication as to any defendant who cannot be personally served as provided by law.

The attorney for the petitioners shall certify to the clerk of the superior court, prior to the hearing on the final report of the board of viewers, that due diligence has been used to determine the names of all landowners within the area of the proposed drainage district; and, that summons has been issued for such landowners, so determined, and served either by personal service or by publication for all known and unknown landowners, insofar as could be determined by due diligence.

History

(1909, c. 442, s. 2; C.S., s. 5315; 1967, c. 621.)

Cross References. - See Local Modification under G.S. 156-56.

CASE NOTES

Notice of Summons to Be Given to All Affected Parties. - The drainage laws of North Carolina have been largely copied from the acts in Indiana and Illinois, and following the construction of these acts for the long period of time the acts have been in force, it is essential that notice of summons in all such proceedings be given to all parties who will be affected thereby. Dover Lumber Co. v. Board of Comm'rs, 173 N.C. 117, 91 S.E. 714 (1917).

Requirement That Summons Be Served on Landowners Mandatory. - This section is mandatory in requiring a "summons to be served on all the defendant landowners who have not joined in the petition and whose lands are included in the proposed drainage district." Dover Lumber Co. v. Board of Comm'rs, 173 N.C. 117, 91 S.E. 714 (1917).

What Notice Is Sufficient. - It would interfere with a much-needed public development if, as a prerequisite thereto, and before a final order could be made, all defects of title and mortgages or liens that might be claimed had to be looked up and adjudicated. It is sufficient that summons is served upon the parties in possession under an apparent legal title, and that before final adjudication notice is given in the manner prescribed, in order that parties claiming liens by mortgage or otherwise, or title to the land adversely to those in possession, should have opportunity to come in and oppose confirmation of the final report. Banks v. Lane, 170 N.C. 14, 86 S.E. 713 (1915), petition for rehearing denied, 171 N.C. 505, 88 S.E. 754 (1916). See also, Drainage Comm'rs v. East Carolina Home & Farm Ass'n, 165 N.C. 697, 81 S.E. 947 (1914).

Subsequent Notification. - The proceedings for forming a drainage district are in rem; and where a valid statute has been complied with therein, and it appears that an owner has not been served with process, it is admissible to notify him, in possession, nunc pro tunc, and to have the lands therein assessed. Taylor v. Richardson, 176 N.C. 217, 96 S.E. 1027 (1918).

Effect of Failure to Serve Summons. - Where a landowner having an interest, within the meaning of the statute, has not been served, and it does not appear that he was an apparent party, an order laying an assessment on his property is void, the proceedings as they relate to him are a nullity, and the assessment may be restrained. Dover Lumber Co. v. Board of Comm'rs, 173 N.C. 117, 91 S.E. 714 (1917), distinguishing Banks v. Lane, 170 N.C. 14, 86 S.E. 713 (1915), petition for rehearing denied, 171 N.C. 505, 88 S.E. 754 (1916), holding a mortgagee not a necessary party.

The statute requires only landowners to be made parties in drainage proceedings. Dover Lumber Co. v. Board of Comm'rs, 173 N.C. 117, 91 S.E. 714 (1917).


§ 156-58. Publication in case of unknown owners.

If, at the time of the filing of the petition, or at any time subsequent thereto, it shall be made to appear to the court by affidavit or otherwise that the names of the owners of the whole or any share of any tracts of land are unknown, and cannot after due diligence be ascertained by the petitioners, the court shall order a notice in the nature of a summons to be given to all such persons by a publication of the petition, or of the substance thereof, and describing generally the tracts of land as to which the owners are unknown, with the order of the court thereon, in some newspaper published in the county wherein the land is located, or in some other county if no newspaper shall be published in the first-named county, which newspaper shall be designated in the order of the court, and a copy of such publication shall be also posted in at least three conspicuous places within the boundaries of the proposed district, and at the courthouse door of the county. Such publication in a newspaper and by posting shall be made for a period of four weeks. After the time of publication shall have expired, if no person claiming and asserting title to the tracts of land and entitled to notice shall appear, the court in its discretion may appoint some disinterested person to represent the unknown owners of such lands, and thereupon the court shall assume jurisdiction of the tracts of land and shall adjudicate as to such lands to the same extent as if the true owners were present and represented, and shall proceed against the land itself. If at any time during the pendency of the drainage proceeding the true owners of the lands shall appear in person, they may be made parties defendant of their own motion and without the necessity of personal service, and shall thereafter be considered as parties to the proceeding; but they shall have no right to except to or appeal from any order or judgment theretofore rendered, as to which the time for filing exceptions on notice shall have expired.

History

(1911, c. 67, s. 1; C.S., s. 5316; 1953, c. 675, s. 25.)

CASE NOTES

Owners Failing to Oppose Proceeding Are Bound Thereby. - By virtue of the notice required by this section, the owners of land have the opportunity to intervene and assert any right they might have to oppose the proceeding, if deemed contrary to their interest. Not having done so, they are bound by the judgment under which bonds were issued. Banks v. Lane, 170 N.C. 14, 86 S.E. 713 (1915), petition for rehearing denied, 171 N.C. 505, 88 S.E. 754 (1916).

As Is Mortgagee. - In proceedings to form a drainage district under this statute, notice by publication is given of the filing of the report in the office of the clerk of the superior court, which is open to inspection to the landowner or other interested person, and a mortgagee of lands who does not intervene and assert his rights to oppose the proceedings is bound by the final judgment. Banks v. Lane, 170 N.C. 14, 86 S.E. 713 (1915), petition for rehearing denied, 171 N.C. 505, 88 S.E. 754 (1916).

Presumption of Regularity of Judgment. - Where publication in accordance with this section has been made, every presumption is in favor of the regularity of the judgment. Taylor v. Richardson, 176 N.C. 217, 96 S.E. 1027 (1918).


§ 156-59. Board of viewers appointed by clerk.

The clerk shall, on the filing of petition and bond, appoint a disinterested and competent civil and drainage engineer and two resident freeholders of the county or counties in which the lands are located as a board of viewers to examine the lands described in the petition and make a preliminary report thereon. The drainage engineer shall be appointed upon the recommendation of the Department of Environmental Quality; and no member of the board of viewers so appointed shall own any land within the boundaries of the proposed district. In the selection of the two members of the board of viewers, other than the engineer, the clerk before making the appointment shall make careful inquiry into the character and qualifications of the proposed members, to the end that the members so appointed shall possess the necessary character, capacity, fitness, and impartiality for the discharge of their important duties.

History

(1909, c. 442, s. 2; 1917, c. 152, s. 1; C.S., s. 5317; 1961, c. 614, s. 4; c. 1198; 1973, c. 1262, s. 23; 1977, c. 771, s. 4; 1989, c. 727, s. 218(157); 1997-443, s. 11A.123; 2015-241, s. 14.30(u).)

Cross References. - See Local Modification under G.S. 156-56.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources."

CASE NOTES

Applied in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962).


§ 156-60. Attorney for petitioners.

The petitioners shall select some learned attorney or attorneys to represent them, who shall prosecute the drainage proceeding and advise with the petitioners and board of viewers, and shall agree upon the compensation for his professional services up to the time when the district shall be established and the board of drainage commissioners elected, or as nearly so as the same may be approximated. If the petitioners are unable to agree upon the selection of an attorney or attorneys, the selection may be made by the clerk of the court. The foregoing provision shall not interfere with the right of any individual petitioner in the selection of an attorney to represent his individual interests if he shall deem the same desirable or necessary.

History

(1917, c. 152, s. 1; C.S., s. 5318.)

§ 156-61. Estimate of expense and manner of payment; advancement of funds and repayment from assessments.

The clerk may make an estimate of the aggregate sum of money which shall appear to be necessary to pay all the expenses incident to the performance of the duties by the board of viewers, including the compensation of the drainage engineer and his necessary assistants, and also including the sum for the compensation of the attorney for the district, and such court costs as may probably accrue, which estimates shall embrace the period of services up to and including the establishment of the drainage district and the selection and appointment of the board of drainage commissioners. The clerk shall then estimate the number of acres of land owned or represented by the petitioners, as nearly so as may be practicable without actual survey, and shall assess each acre so represented a level rate per acre, to the end that such assessment will realize the sum of money which he has estimated as necessary to pay all necessary costs of the drainage proceeding up to the time of the appointment of the drainage commissioners, as above provided. The assessment above provided for which has been or may hereafter be levied shall constitute a first and paramount lien, second only to State and county taxes, upon the lands so assessed, and shall be collected in the same manner and by the same officers as county taxes are collected. The board of viewers, including the drainage engineer, shall not be required to enter upon the further discharge of their duties until the amount so estimated and assessed shall be paid in cash to the clerk of the court, which shall be retained by him as a court fund, and for which he shall be liable in his official capacity, and he shall be authorized to disburse the same in the prosecution of the drainage proceeding. Unless all the assessments shall be paid within a time to be fixed by the court, which may be extended from time to time, no further proceedings shall be had, and the proceeding shall be dismissed at the cost of the petitioners. If the entire sum so estimated and assessed shall not be paid to the clerk within the time limited, the amounts so paid shall be refunded to the petitioners pro rata after paying the necessary costs accrued. Nothing herein contained shall prevent one or more of the petitioners from subscribing and paying any sum in addition to their assessment in order to make up any deficiency arising from the delinquency of one or more of the petitioners. When the sum of money so estimated shall be paid, the board of viewers shall proceed with the discharge of their duties, and in all other respects the proceeding shall be prosecuted according to the law. After the district shall have been established and the board of drainage commissioners appointed, it shall be the duty of the board of drainage commissioners to refund to each of the petitioners the amount so paid by them as above provided, out of the first moneys which shall come into the hands of the board from the sale of bonds or otherwise, and the same shall be included in ascertaining the total cost of improvement.

In lieu of the procedures set forth in the preceding paragraph, the board of county commissioners may advance funds, or any part thereof, for the purposes set forth in the preceding paragraph. Such advances shall be made to a county official designated by the commissioners, and shall be disbursed upon such terms as the county commissioners may direct. If the district shall be organized, the funds advanced shall be repaid from assessments thereafter levied.

History

(1917, c. 152, s. 1; C.S., s. 5319; 1941, c. 342; 1961, c. 614, s. 6; c. 662.)

§ 156-62. Examination of lands and preliminary report.

The board of viewers shall proceed to examine the land described in the petition, and other land if necessary to locate properly such improvement or improvements as are petitioned for, along the route described in the petition, or any other route answering the same purpose if found more practicable or feasible, and may make surveys such as may be necessary to determine the boundaries and elevation of the several parts of the district, and shall make and return to the clerk of the superior court within 30 days, unless the time shall be extended by the court, a written report, which shall set forth:

  1. Whether the proposed drainage is practicable or not.
  2. Whether it will benefit the public health or any public highway or be conducive to the general welfare of the community.
  3. Whether the improvement proposed will benefit the lands sought to be benefited.
  4. Whether or not all the lands that are benefited are included in the proposed drainage district.
  5. Whether or not the district proposed to be formed is to be a reclamation district or an improvement district. A reclamation district is defined to be a district organized principally for reclaiming lands not already under cultivation. An improvement district is defined to be a district organized principally for the improvement of lands then under cultivation. The board of viewers shall further report, if the district is a reclamation district within the above definition, whether or not the proposed drainage would be justified by the additional value for agricultural purposes given to land so drained.

They shall also file with this report a map of the proposed drainage district, showing the location of the ditch or ditches or other improvement to be constructed and the lands that will be affected thereby, and such other information as they may have collected that will tend to show the correctness of their findings.

History

(1909, c. 442, s. 3; C.S., s. 5320; 1927, c. 98, s. 2.)

CASE NOTES

Applied in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962).

Cited in In re Albemarle Drainage Dist., Beaufort County No. 5, 255 N.C. 338, 121 S.E.2d 599 (1961).


§ 156-63. First hearing of preliminary report.

The clerk of the superior court shall consider this report. If the viewers report that the drainage is not practicable or that it will not benefit the public health or any public highway or be conducive to the general welfare of the community, and the court shall approve such findings, the petition shall be dismissed at the cost of the petitioners, and such petition shall likewise be dismissed at the cost of the petitioners if it is sought to set up a reclamation district and the viewers report that the cost of reclaiming the land would be so great as not to justify the expense of draining it. Such petition or proceeding may again be instituted by the same or additional landowners at any time after six months, upon proper allegations that conditions have changed or that material facts were omitted or overlooked. If the viewers report that the drainage is practicable and that it will benefit the public health or any public highway or be conducive to the general welfare of the community, and the court shall so find, then the court shall fix a day when the report will be further heard and considered.

History

(1909, c. 442, s. 4; C.S., s. 5321; 1927, c. 98, s. 3.)

CASE NOTES

As to setting of date for objections by clerk, see Shelton v. White, 163 N.C. 90, 79 S.E. 427 (1913).

Applied in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962).


§ 156-64. Notice of further hearing.

If the petition is entertained by the court, notice shall be given by publication once a week for at least two consecutive weeks in some newspaper of general circulation within the county or counties, if one shall be published in such counties, and also by posting a written or printed notice at the door of the courthouse and at five conspicuous places within the drainage district, that on the date set, naming the day, the court will consider and pass upon the report of the viewers. At least 15 days shall intervene between the date of the publication and the posting of the notices and the date set for the hearing.

History

(1909, c. 442, s. 5; C.S., s. 5322; 1963, c. 767, s. 1.)

CASE NOTES

Applied in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962).

Cited in In re Albemarle Drainage Dist., Beaufort County No. 5, 255 N.C. 338, 121 S.E.2d 599 (1961).


§ 156-65. Further hearing, and district established.

At the date appointed for the hearing the court shall hear and determine any objections that may be offered to the report of the viewers. If it appear that there is any land within the proposed levee or drainage district that will not be affected by the leveeing or drainage thereof, such lands shall be excluded and the names of the owners withdrawn from such proceeding; and if it shall be shown that there is any land not within the proposed district that will be affected by the construction of the proposed levee or drain, the boundary of the district shall be so changed as to include such land, and such additional landowners shall be made parties plaintiff or defendant, respectively, and summons shall issue accordingly, as hereinbefore provided. After such change in the boundary is made, the sufficiency of the petition shall be verified, to determine whether or not it conforms to the requirements hereinbefore provided. The efficiency of the drainage or levees may also be determined, and if it appears that the location of any levee or drain can be changed so as to make it more effective, or that other branches or spurs should be constructed, or that any branch or spur projected may be eliminated or other changes made that will tend to increase the benefits of the proposed work, such modification and changes shall be made by the board. The engineer and the other two viewers may attend this meeting and give any information or evidence that may be sought to verify and substantiate their report. If necessary, the petition, as amended, shall be referred by the court to the engineer and two viewers for further report. The above facts having been determined to the satisfaction of the court, and the boundaries of the proposed district so determined, it shall declare the establishment of the drainage or levee district, which shall be designated by a name or number, for the object and purpose as herein set forth.

If any lands shall be excluded from the district because of the court having found that such lands will not be affected or benefited, and the names of the owners of such lands have been withdrawn from such proceeding, but such lands are so situated as necessarily to be located within the outer boundaries of the district, such fact shall not prevent the establishment of the district, and such lands shall not be assessed for any drainage tax; but this shall not prevent the district from acquiring a right-of-way across such lands for constructing a canal or ditch or for any other necessary purpose authorized by law.

The court shall further determine, if it is sought to establish a reclamation district, whether or not the increased value of the particular land should be so great as to justify the cost and expenses of its reclaiming.

History

(1909, c. 442, s. 6; 1911, c. 67, s. 2; C.S., s. 5323; 1927, c. 98, s. 4.)

CASE NOTES

Reason for Conferring Power to Include Lands of Opposing Owners. - It is because of the benefits which accrue to the public from the establishment of a drainage district under the statute that power conferred thereby upon the court to include lands of owners who are unwilling to sign the petition or who oppose the establishment of the district is sustained. O'Neal v. Mann, 193 N.C. 153, 136 S.E. 379 (1927).

What Issues May Be Raised by Minority Landowner. - A minority landowner included in a proposed drainage district to be laid out may not contest the formation of the district, but may only raise the issue as to his benefits therefrom. Shelton v. White, 163 N.C. 90, 79 S.E. 427 (1913).

Right of Signer of Original Petition to Object. - Upon the report of the viewers at the final hearing in proceedings to lay off a drainage district, one who signed the original petition and may have ascertained from the information contained in the report, contrary to his previous opinion, that the cost of the improvements and damages would amount to more than the benefits to his land, may then file his objections, and the same procedure is then open to him as if he had not signed the petition. Shelton v. White, 163 N.C. 90, 79 S.E. 427 (1913).

Boundaries Must Include All Lands Benefited. - The court has no authority to decree the establishment of a drainage district which does not include within its boundaries all lands benefited by the work to be done. It must enlarge the boundaries to include all such land. In re Albemarle Drainage Dist., Beaufort County No. 5, 255 N.C. 338, 121 S.E.2d 599 (1961).

A smaller drainage district may be laid off within the boundaries of a larger one, theretofore organized, the purposes of each harmonizing with the purposes of the other. Drainage Comm'rs v. East Carolina Home & Farm Ass'n, 165 N.C. 697, 81 S.E. 947 (1914).

Applied in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962).


§ 156-66. Right of appeal.

Any person owning lands within the drainage or levee district which he thinks will not be benefited by the improvement and should not be included in the district may appeal from the decision of the court to the superior court of such county, in termtime, by filing an appeal, accompanied by a bond conditioned for the payment of the costs if the appeal should be decided against him, for such sum as the court may require, not exceeding two hundred dollars ($200.00), signed by two or more solvent sureties or in some approved surety company to be approved by the court.

History

(1909, c. 442, s. 8; C.S., s. 5324.)

Cross References. - As to appeal from final hearing, see G.S. 156-75.

CASE NOTES

Appeal as Notice to Purchaser of Bonds. - Where the owner of land in a drainage district has duly excepted under this section and again under G.S. 156-75 and has appealed, the purchaser of bonds issued by the district takes with notice of the rights of the complaining party so excepting, and acquires the bonds subject thereto. Drainage Dist. No. 1 v. Parks, 170 N.C. 435, 87 S.E. 229 (1917).

Proceedings upon Appeal. - A petition for the establishment of a drainage district by a majority of the resident landowners or by the owners of three fifths of the land therein, approved by the report of the viewers and affirmed by the clerk, permits a majority owner to raise only the issue of fact for the jury to determine as to the benefit to his lands; and should the jury find in favor of the objector, he is not entitled as a matter of right to have his land excluded, but it is for the judge to decide whether this may be done without injury to the district, and if not, he may order that such land be retained upon payment of damages to be awarded by the jury, as in condemnation of lands; all other matters embodied in the report are subject to approval by the clerk, and review by the judge without the intervention of a jury, being questions of fact. Shelton v. White, 163 N.C. 90, 79 S.E. 427 (1913).

Challenge upon Issuance of Additional Bonds Not Permitted After Failure to Appeal. - Appeals are separately provided for under this section when the drainage district has been laid off, and under G.S. 156-75 when the final act is passed upon; and where the complaining owner of land in the district has not entered an exception under either of these two sections, as the statute provides, and bonds have been duly issued on the lands of the district for drainage purposes, and thereafter application has been made by the commissioners for the issuance of additional bonds, in the further proceedings he may not be permitted to go back and challenge the formation of the district and the classification and assessments already made by attacking the reports of the engineers and viewers, and withdraw a large part of his lands from the district theretofore formed. Drainage Dist. No. 1 v. Parks, 170 N.C. 435, 87 S.E. 229 (1917).

Cited in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962).


§ 156-67. Condemnation of land.

If it shall be necessary to acquire a right-of-way or an outlet over and through lands not affected by the drainage, and the same cannot be acquired by purchase, then and in such event the power of eminent domain is hereby conferred, and the same may be condemned. The owners of the land proposed to be condemned may be made parties defendant in the manner of an ancillary proceeding, and the procedure shall be, to the extent practicable, supplemented by the provisions of Chapter 40A Eminent Domain and such damages as may be awarded as compensation shall be paid by the board of drainage commissioners out of the first funds which shall be available from the proceeds of sale of bonds or otherwise.

History

(1909, c. 442, s. 7; C.S., s. 5325; 1981, c. 919, s. 24.)

§ 156-68. Complete survey ordered.

After the district is established the court shall refer the report of the engineer and viewers back to them to make a complete survey, plans, and specifications for the drains or levees or other improvements, and fix a time when the engineer and viewers shall complete and file their report, not exceeding 60 days.

History

(1909, c. 442, s. 9; C.S., s. 5326.)

§ 156-69. Nature of the survey; conservation and replacement of fish and wildlife habitat; structures to control and store water.

The engineer and viewers shall have power to employ such assistants as may be necessary to make a complete survey of the drainage district, and shall enter upon the ground and make a survey of the main drain or drains and all its laterals. The line of each ditch, drain, or levee shall be plainly and substantially marked on the ground. The course and distance of each ditch shall be carefully noted and sufficient notes made, so that it may be accurately plotted and mapped. A line of levels shall be run for the entire work and sufficient data secured from which accurate profiles and plans may be made. Frequent bench marks shall be established among the line, on permanent objects, and their elevation recorded in the field books. If it is deemed expedient by the engineer and viewers, other levels may be run to determine the fall from one part of the district to another. If an old watercourse ditch, or channel is being widened, deepened, or straightened, it shall be accurately cross-sectioned so as to compute the number of cubic yards saved by the use of such old channel. A drainage map of the district shall then be completed, showing the location of the ditch or ditches and other improvements and the boundary, as closely as may be determined by the records, of the lands owned by each individual landowner within the district. The location of any railroads or public highways and the boundary of any incorporated towns or villages within the district shall be shown on the map. There shall also be prepared to accompany this map a profile of each levee, drain, or watercourse, showing the surface of the ground, the bottom or grade of the proposed improvement, and the number of cubic yards of excavation or fill in each mile or fraction thereof, and the total yards in the proposed improvement and the estimated cost thereof, and plans and specifications, and the cost of any other work required to be done.

The board of viewers shall consider the effect of the proposed improvements upon the habitat of fish and wildlife, and the laws and regulations of the Commission for Public Health. Their report shall include their recommendations and the estimated cost thereof, as to the conservation and replacement of fish and wildlife habitat, if they shall determine such shall be damaged or displaced by the proposed improvement. The board, to determine their recommendations, may consult governmental agencies, wildlife associations, individuals, or such other sources as they may deem desirable, to assist them in their considerations of and recommendations relating to, the conservation and replacement of fish and wildlife habitat.

The board of viewers shall consider the need for and feasibility of, the construction of structures which will do one or more of the following:

  1. Control the flow of water,
  2. Impound or store water and,
  3. Provide areas for conservation and replacement of fish and wildlife habitat.
    1. The canals and drainage system.
    2. Structures to:
      1. To control the water,
      2. Impound or store water and,
      3. To conserve and replace fish and wildlife habitat.
    3. Conserve and replace fish and wildlife habitat.

If structures are recommended for any one or more of said purposes, their report shall include:

(1) Specifications therefor.

(2) Location thereof together with the description of the area of land needed for the purpose of said structure, i.e., water storage or impoundment, or fish and wildlife habitat.

(3) Estimate of cost thereof.

The report of the board of viewers shall set forth, in regard to the foregoing, the following information:

(1) The areas of land needed for construction and maintenance of:

(2) Upon whose land such areas are located.

(3) The area of land necessary to be acquired from each landowner.

The map accompanying the report shall have shown thereon, the location of the areas of land needed for the construction and maintenance of the following:

(1) The canal and drainage system.

(2) Structures to:

a. Control the flow of water,

b. Impound or store the water,

The board of viewers may, in its discretion, agree with the Soil Conservation Service of the Department of Agriculture or any agency of the government of the United States or of the State of North Carolina whereby such agency will furnish all or a part of the service necessary to obtain the information set forth in the preceding paragraph and in G.S. 156-68.

The board of viewers may accept such information as furnished by such agencies and include such information in their final report to the clerk.

The board of viewers and engineers of the district may use control or semicontrol, mosaic aerial photographs or other sources and stereoscopic or other methods, generally used and deemed acceptable by civil and drainage engineers for the purpose of obtaining the information required in this section and in lieu of a detailed ground survey. In the event a detailed ground survey is not made, only those ground markings need be made as the board of viewers deem necessary. The location of the proposed canals must be shown on the ground prior to actual construction.

History

(1909, c. 442, s. 10; C.S., s. 5327; 1959, c. 597, s. 1; 1961, c. 614, ss. 5, 9; 1965, c. 1143, s. 1; 1973, c. 476, s. 128; 2007-182, s. 2.)

Effect of Amendments. - Session Laws 2007-182, s. 2, effective July 5, 2007, substituted "Commission for Public Health" for "Commission for Health Services" in the second paragraph.

CASE NOTES

Applied in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962).


§ 156-70. Assessment of damages.

It shall be the further duty of the engineer and viewers to assess the damages claimed by anyone that are justly right and due to him 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, and shall be paid by the board of drainage commissioners when funds shall come into their hands.

History

(1909, c. 442, s. 11; 1915, c. 238; 1917, c. 152, s. 16; C.S., s. 5328.)

CASE NOTES

Pendency of a proceeding to lay off a drainage district under the statute is notice as to all the lands embraced in the district, and the grantees thereof are bound by statutory requirements as to the procedure to recover damages to the lands, as were their grantors who were parties to the proceedings and who owned the lands at the time thereof. Newby & White v. Board of Drainage Comm'rs, 163 N.C. 24, 79 S.E. 266 (1913).

Inclusion of Damages to Timber. - While under the drainage acts no assessments for benefits can be made against the owner of timber interests, only the land itself being liable, the owner of the land and of timber within the district, by the provision of the statute, when made a party to the proceedings and duly notified, is required to present his claim for the entire injury, inclusive of that to his timber, and the damages to the timber should thus be included and allowed in the final judgment in the proceedings. Beaufort County Lumber Co. v. Drainage Comm'rs, 174 N.C. 647, 94 S.E. 457 (1917).

When Independent Action for Damages May Be Maintained. - The principles that conclude parties to proceedings in the formation of drainage districts under the statute by final judgment from a recovery of damages to their lands applies to such as may have accrued in the laying out and establishment of the district under the procedure prescribed, and does not prevent an injured proprietor, within or without the district, from maintaining an independent action to recover damages caused by an unauthorized and substantial departure from the scheme and plan established by the decrees and orders in the cause, nor where the damage complained of is attributable to the negligence of the company or its officers or agents in carrying out the proposed work. Spencer v. Wills, 179 N.C. 175, 102 S.E. 275 (1920).

Permanent Damages Held Recoverable. - Where the whole of plaintiff's land was originally included in a drainage district to be established under the statutory provisions, but the final judgment so restricted and modified the survey, plat and boundaries as to exclude all except a comparatively small potion of the land, but the preliminary survey showed that a canal would go through the land included as well as through the land, or a large part thereof, excluded by the final judgment, and there was no evidence that ancillary proceedings for this outside land by condemnation had been resorted to, the plaintiff, in his independent action, could elect to recover the permanent damages caused to his land. Sawyer v. Camden Run Drainage Dist., 179 N.C. 182, 102 S.E. 273 (1920).

Applied in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962).


§ 156-70.1. When title deemed acquired for purpose of easements or rights-of-way; notice to landowner; claim for compensation; appeal.

The district shall be deemed to have acquired title for the purpose of easements or rights-of-way to those areas of land identified in the final report of the board of viewers and as shown on the map accompanying said report, at the time said final report is confirmed by the clerk of the superior court.

The board of viewers shall cause notice as to the area or areas of land involved, to be given to each landowner so affected, which notice shall be in writing and mailed to the last known address of the landowner at least seven days prior to the hearing on the final report as provided by G.S. 156-73.

If the landowner desires compensation for the land areas so acquired by the district, claim for the value of the same shall be submitted to the board of viewers on or before the time of the adjudication upon the final report as provided for by G.S. 156-74.

If the board of viewers shall approve the claim, the amount so approved shall be added to the total cost of the district as estimated in said final report and this shall be done by amendment to the final report submitted to the clerk of the superior court on or before the adjudication provided for in G.S. 156-74.

If the board of viewers shall not approve said claim, the clerk of the superior court shall consider the claim and determine what in his opinion is a fair value and the amount so determined shall be shown in the said final report as amended and confirmed by said adjudication. The landowner or the drainage district may appeal from the decision of the clerk of the superior court, to the superior court, upon the question of the value of the land taken and such value shall be determined by a jury. The procedure for the appeal shall be in accordance with the provision of G.S. 156-75.

History

(1959, c. 597, s. 2; c. 1085; 1965, c. 1143, s. 2.)

CASE NOTES

Applied in Taylor v. Askew, 17 N.C. App. 620, 195 S.E.2d 316 (1973).


§ 156-71. Classification of lands and benefits.

It shall be the further duty of the engineer and viewers to personally examine the land in the district and classify it with reference to the benefit it will receive from the construction of the levee, ditch, drain, or watercourse or other improvement. In the case of drainage, the degree of wetness on the land, its proximity to the ditch or a natural outlet, and the fertility of the soil shall be considered in determining the amount of benefit it will receive by the construction of the ditch. The land benefited shall be separated in five classes. The land receiving the highest benefit shall be marked "Class A"; that receiving the next highest benefit, "Class B"; that receiving the next highest benefit, "Class C"; that receiving the next highest benefit, "Class D," and that receiving the smallest benefit, "Class E." The holdings of any one landowner need not be all in one class, but the number of acres in each class shall be ascertained, though its boundary need not be marked on the ground or shown on the map. The total number of acres owned by one person in each class and the total number of acres benefited shall be determined. The total number of acres of each class in the entire district shall be obtained and presented in tabulated form. The scale of assessment upon the several classes of land returned by the engineer and viewers shall be in the ratio of five, four, three, two, and one; that is to say, as often as five mills per acre is assessed against the land in "Class A," four mills per acre shall be assessed against the land in "Class B," three mills per acre in "Class C," two mills per acre in "Class D," and one mill per acre in "Class E." This shall form the basis of the assessment of benefits to the lands for drainage purposes. In any district lands may be included which are not benefited for the agriculture or crop production, or slightly so, but which will receive benefit by improvement in health conditions, and as to such lands the engineer and viewers may assess each tract of land without regard to the ratio and at such a sum per acre as will fairly represent the benefit of such lands. Villages or towns or parts thereof and small parcels of land located outside thereof and used primarily for residence or other specific purposes, and which require drainage, may also be included in any drainage district which by reason of their improved conditions and the limited area in each parcel under individual ownership, it is impracticable to fairly assess the benefits to each separated parcel of land by the ratio herein provided, and as to such parcels of land the engineer and viewers may assess each parcel of land without regard to the ratio and at a higher rate per acre respectively by reason of the greater benefits. If the streets or other property owned by any incorporated town or village are likewise benefited by such drainage works, the corporation may be assessed in proportion to such benefits, which assessment shall constitute a liability against the corporation and may be enforced as provided by law.

The board of viewers may determine that some areas of the district will receive more benefits than other areas and if such is determined, the varying benefits shall be reflected in the manner of classification of benefits to each area and the tracts of land therein.

History

(1909, c. 442, s. 12; C.S., s. 5329; 1923, c. 217, s. 1; 1961, c. 614, s. 7.)

Cross References. - As to application of this section, see G.S. 156-104.

CASE NOTES

Discretion of Commissioners as to Classification Under Local Act. - The legislature, in authorizing the establishment of a drainage district, may very largely commit to the commissioners the exercise of their judgment as to what should be done in carrying out the general provisions specified by the statute; and the special act of the legislature creating the Gaston County Drainage Commission, c. 427, Public-Local Laws of 1911, thus construed, does not relieve a landowner therein from paying his authorized assessments for benefits solely because the commission failed to strictly and literally divide the lands into the number of classes therein set out. Mitchem v. Gaston County Drainage Comm'n, 182 N.C. 511, 109 S.E. 551 (1921).

Applied in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962).

Cited in In re Albemarle Drainage Dist., Beaufort County No. 5, 255 N.C. 338, 121 S.E.2d 599 (1961).


§ 156-72. Extension of time for report.

In case the work is delayed by high water, sickness, or any other good cause, and the report is not completed at the time fixed by the court, the engineer and viewers shall appear before the court and state in writing the cause of such failure and ask for sufficient time in which to complete the work, and the court shall set another date by which the report shall be completed and filed.

History

(1909, c. 442, s. 14; C.S., s. 5330.)

§ 156-73. Final report filed; notice of hearing.

When the final report is completed and filed it shall be examined by the court, and if it is found to be in due form and in accordance with the law it shall be accepted, and if not in due form it may be referred back to the engineer and viewers, with instructions to secure further information, to be reported at a subsequent date to be fixed by the court. When the report is fully completed and accepted by the court a date not less than 20 days thereafter shall be fixed by the court for the final hearing upon the report, and notice thereof shall be given by publication in a newspaper of general circulation in the county and by posting a written or printed notice on the door of the courthouse and at five conspicuous places throughout the district, such publication to be made once a week for at least three consecutive weeks before the final hearing. During this time a copy of the report shall be on file in the office of the clerk of the superior court, and shall be open to the inspection of any landowner or other persons interested within the district.

History

(1909, c. 442, s. 15; C.S., s. 5331; 1959, c. 807, ss. 1, 2; 1963, c. 767, s. 2.)

CASE NOTES

Newspaper Publication Held Unnecessary. - It was not fatal to the validity of bonds issued by a drainage district that the notice of the time of hearing objections to the final report was not published in some newspaper of general circulation in the county, when it appeared that no newspaper was published therein or elsewhere which had a general circulation in the county, and that the landowners affected had actual and ample notice of such time and raised no objection. Board of Drainage Comm'rs v. Brett Eng'r Co., 165 N.C. 37, 80 S.E. 897 (1914).


§ 156-74. Adjudication upon final report.

At the date set for hearing any landowner may appear in person or by counsel and file his objection in writing to the report of the viewers; and it shall be the duty of the court to carefully review the report of the viewers and the objections filed thereto, and make such changes as are necessary to render substantial and equal justice to all the landowners in the district. If, in the opinion of the court, the cost of construction, together with the amount of damages assessed, is not greater than the benefits that will accrue to the land affected, the court shall confirm the report of the viewers. If, however, the court finds that the cost of construction, together with the damages assessed, is greater than the resulting benefit that will accrue to the lands affected, the court shall dismiss the proceedings at the cost of the petitioners, and the sureties upon the bond so filed by them shall be liable for such costs. Provided, that the Department of Environmental Quality may remit and release to the petitioners the costs expended by the board on account of the engineer and his assistants. The court may from time to time collect from the petitioners such amounts as may be necessary to pay costs accruing, other than costs of the engineer and his assistants, such amounts to be repaid from the special tax hereby authorized.

The court shall, at the time of consideration of said report, determine whether:

  1. The petitioners constitute a majority of the resident landowners, whose lands are adjudged to be benefited by the proposed construction work as shown in the final report of the board of viewers and finally approved by the court; or
  2. The petitioners own three fifths of the land area which is adjudged to be benefited by the proposed construction work as shown in the final report of the board of viewers and finally approved by the court.

If the petitioners do not constitute either a majority of the resident landowners or own three fifths of the land as set out in subdivisions (1) or (2) above, then the proceedings shall be dismissed.

History

(1909, c. 442, s. 16; 1915, c. 238, s. 2; 1917, c. 152, s. 16; C.S., s. 5332; 1925, c. 122, s. 4; 1959, c. 1312, s. 1; 1961, c. 1198; 1973, c. 1262, s. 23; 1977, c. 771, s. 4; 1989, c. 727, s. 218(158); 1997-443, s. 11A.123; 2015-241, s. 14.30(u).)

Effect of Amendments. - Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in the first paragraph.

CASE NOTES

Final Decree as Adjudication That Benefits Exceed Burdens. - A final decree in proceedings to lay off a statutory drainage district is an adjudication that the benefits to the land within the district are more than the burdens assessed against it for such purpose. Banks v. Lane, 170 N.C. 14, 86 S.E. 713 (1915), petition for rehearing denied, 171 N.C. 505, 88 S.E. 754 (1916).

Failure to Object as Waiver. - Where a drainage district has been duly laid off in conformity with the statute, and a landowner therein has not excepted to either the preliminary or final report, he may not, after appointment of the commissioners, be heard to complain that the benefits he is to receive are not as great as those he had contemplated. Griffin v. Board of Comm'rs, 169 N.C. 642, 86 S.E. 575 (1915).

The question as to whether an owner of land within a drainage district has realized the benefits anticipated is eliminated when the district is established upon the report; and where such owner remains silent or makes no objection or exception at the proper time as to the proceedings of the board, his silence is a waiver of any right he may have had therein, and an independent remedy by injunction is not open to him. Mitchem v. Gaston County Drainage Comm'n, 182 N.C. 511, 109 S.E. 551 (1921).


§ 156-75. Appeal from final hearing.

Any landowner, party petitioner, or the drainage district may, within 10 days after the entry of an order or judgment by the clerk upon the report of the board of viewers, appeal to the superior court in session time or in chambers. The procedures for taking appeal are as provided in Article 27A of Chapter 1 of the General Statutes, except as provided otherwise by this Subchapter. In an appeal to the superior court taken under this section or any other section or provision of the drainage laws of the State, general or local, the appeal has precedence in consideration and trial by the court. If other issues also have precedence in the superior court under existing law, the court, in its discretion, determines the order in which they are heard.

History

(1909, c. 442, s. 17; 1911, c. 67, s. 3; C.S., s. 5333; 1923, c. 217, s. 2; 1969, c. 192, s. 1; 1973, c. 108, s. 96; 1999-216, s. 20.)

Cross References. - As to right of appeal, see G.S. 156-66.

As to application of this section, see G.S. 156-104.

CASE NOTES

Construction of Section. - This section, providing for an appeal upon exception to the final report by an owner of lands in a drainage district laid off under the provisions of the statute, necessarily refers to the formation of the district and the assessments of the lands embraced in it. Wayne County Drainage Dist. No. 1 v. Parks, 170 N.C. 435, 87 S.E. 229 (1917).

Appeal Only upon Exceptions Filed Below. - An appeal from the final order of the clerk in establishing a drainage district under this section is heard only upon the exceptions thereto filed as to issues of law or fact. In re Big Cold Water Drainage Dist., 162 N.C. 127, 78 S.E. 14 (1913); Shelton v. White, 163 N.C. 90, 79 S.E. 427 (1913).

It is sufficient that the clerk has found as a fact that the allegations set out in the petition are true, if these allegations are sufficient, and distinctly and clearly made. In re Big Cold Water Drainage Dist., 162 N.C. 127, 78 S.E. 14 (1913).

Where, by consent of the parties to an action, the court has ordered a referee for hearing and determining "all matters in controversy," and the controversy has arisen upon exceptions taken by a landowner to the final report on the plan and assessments made in forming a drainage district, by this section, the complaining party may not successfully except to the authority of the referee in passing upon questions therein arising which have been referred to him. Wayne County Drainage Dist. No. 1 v. Parks, 170 N.C. 435, 87 S.E. 229 (1917).

Cited in In re Drainage of Ahoskie Creek, 257 N.C. 337, 125 S.E.2d 908 (1962); In re Drainage of Ahoskie Creek, 261 N.C. 407, 134 S.E.2d 642 (1964).


§ 156-76. Compensation of board of viewers.

The compensation of the engineer, including his necessary assistants, rodmen, and laborers, and also the compensation of the viewers, shall be fixed by the clerk. In fixing such compensation, particularly of the drainage engineer, the clerk shall confer fully with the Department of Environmental Quality and with the petitioners. The compensation to be paid the two members of the board of viewers, other than the engineer, shall be in such amount per day as may be fixed by the clerk of the superior court for the time actually employed in the discharge of their duties, and in addition any actual and necessary expenses of travel and subsistence while in the actual discharge of their duties, an itemized report of which shall be submitted and verified.

History

(1909, c. 442, s. 36; 1917, c. 152, ss. 1, 2; C.S., s. 5334; 1925, c. 122, s. 4; 1959, c. 288; 1961, c. 1198; 1973, c. 1262, s. 23; 1977, c. 771, s. 4; 1989, c. 727, s. 218(159); 1997-443, s. 11A.123; 2015-241, s. 14.30(u).)

Effect of Amendments. - Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in the second sentence.

§ 156-77. Account of expenses filed.

The engineer and viewers shall keep an accurate account and report to the court the name and number of days each person was employed on the survey and the kind of work he was doing, and any expenses that may have been incurred in going to and from the work, and the cost of any supplies or material that may have been used in making the survey.

History

(1909, c. 442, s. 13; C.S., s. 5335.)

§ 156-78. Drainage record.

The clerk of the superior court shall provide a suitable book, to be known as the "Drainage Record," in which he shall transcribe every petition, motion, order, report, judgment, or finding of the board in every drainage transaction that may come before it, in such a manner as to make a complete and continuous record of the case. Copies of all the maps and profiles are to be furnished by the engineer and marked by the clerk "official copies," which shall be kept on file by him in his office, and one other copy shall be pasted or otherwise attached to his record book.

History

(1909, c. 442, s. 18; C.S., s. 5336.)

CASE NOTES

Waiver by Failure to Object to Proceedings Noted in Record Book. - Upon the filing of the final report by the viewers, etc., in a proceeding to establish a drainage district under the provisions of the statute, a record is required by the statute to be kept in a book for the purpose, giving all those interested in the proceedings notice of all that has been done materially affecting them; and when they have timely failed to make objection, they have lost their right to object by the delay. Griffin v. Board of Comm'rs, 169 N.C. 642, 86 S.E. 575 (1915).


§ 156-78.1. Municipalities.

  1. Any municipality may participate in drainage district works or projects upon mutually agreeable terms relating to such matters as the construction, financing, maintenance and operation thereof.
  2. Any municipality may contribute funds toward the construction, maintenance and operation of drainage district works or projects, to the extent that such works or projects:
    1. Provide a source of municipal water supply for the municipality, or protect an existing source of such supply, enhance its quality or increase its dependable capacity or quantity, or implement or facilitate the disposal of sewage of the municipality; or
    2. Protect against or alleviate the effects of floodwater or sediment damages affecting, or provide drainage benefits for property owned by the municipality or its inhabitants.
  3. Municipal expenditures for the aforesaid purposes are declared to be for necessary expenses. Municipalities may enter continuing contracts, some portion or all of which may be performed in an ensuing year, agreeing to make periodic payments in ensuing fiscal years to drainage districts in consideration of benefits set forth in subsection (b) (2) of this section, but no such contract may be entered into unless sufficient funds have been appropriated to meet any amount to be paid under the contract in the fiscal year in which the contract is made. The municipal governing body shall, in the budget ordinance of each ensuing fiscal year during which any such contract is in effect, appropriate sufficient funds to meet the amount to be paid under the contract in such ensuing fiscal year. The statement required by G.S. 160-411.1 to be printed, written or typewritten on all contracts, agreements, or requisitions requiring the payment of moneys shall be placed on such a continuing contract only if sufficient funds have been appropriated to meet the amount to be paid under the contract in the fiscal year in which the contract is made.
  4. The provisions of this section are permissive. If a municipality does not participate in accordance with the provisions of this section, then the other provisions of Subchapter III shall apply and be followed.

History

(1961, c. 614, s. 10.)

Cross References. - As to property taxes to provide for drainage projects or programs, see G.S. 160A-209.

Editor's Note. - Section 160-411.1, referred to in this section, was repealed by Session Laws 1971, c. 780, s. 13. See now G.S. 159-28.

ARTICLE 6. Drainage Commissioners.

Sec.

§ 156-79. Appointment and organization under original act.

After the drainage district has been declared established, as aforesaid, and the survey and plan therefor approved, the court shall appoint three persons, in the manner set forth in G.S. 156-81, who shall be designated as the board of drainage commissioners. Any vacancy thereafter occurring shall be filled by the clerk or clerks of the superior court in the manner set forth in G.S. 156-81. Such three drainage commissioners, when so appointed, shall be immediately created a body corporate under the name and style of "The Board of Drainage Commissioners of ____________ District," with the right to hold property and convey the same, to sue and be sued, and shall possess such other powers as usually pertain to corporations. They shall organize by electing from among their number a chairman and a vice-chairman. They shall also elect a secretary, either within or without their body. Such board of drainage commissioners shall adopt a seal, which they may alter at pleasure. The board of drainage commissioners shall have and possess such powers as are herein granted.

History

(1909, c. 442, s. 19; 1917, c. 152, s. 17; C.S., s. 5337; 1947, c. 273; 1963, c. 767, s. 3; 1989 (Reg. Sess., 1990), c. 959, s. 2.)

Local Modification. - Columbus, Chadburn Drainage District: 1939, c. 70; 1953, c. 1020; Hyde, Mattamuskeet Lake District: 1909, c. 509; Pub. Loc. 1927, c. 407; Iredell, Davidson Creek Drainage District: 1933, c. 466; Pitt County Drainage District: 1979, c. 817; Robeson County Drainage District Number One: 2013-254, s. 1.

See also the note headed "Local Modification" under G.S. 156-56.

CASE NOTES

Individual Acts of Officials Not Binding on District. - A drainage district is a corporation, and as any other corporation, public or private, it cannot be bound by the acts of its officials or agents acting separately or individually. Davenport v. Pitt County Drainage Dist. No. 2, 220 N.C. 237, 17 S.E.2d 1 (1941).

A drainage district is not authorized to enter into a contract that would give special or particular rights or claims to one landowner in the drainage district that are not enjoyed by all landowners similarly situated. Davenport v. Pitt County Drainage Dist. No. 2, 220 N.C. 237, 17 S.E.2d 1 (1941).

As to appointment of commissioners for a particular drainage district established under special act, see State ex rel. Mann v. Gibbs, 156 N.C. 44, 72 S.E. 82 (1911).

Cited in Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990).


§ 156-80. Name of districts.

The name of such drainage district shall constitute a part of its corporate name; for illustration, the board of drainage commissioners of Mecklenburg Drainage District, No. 1. In the naming of a drainage district the clerk of the court, notwithstanding the name given in the petition, shall so change the name as to make it conform to the county within which the district, or the main portion of the district, is located, and such district shall also be designated by number, the number to indicate the number of districts petitioned for in the county. For illustration, the first district organized in Mecklenburg County would be Mecklenburg County Drainage District, No. 1; the name of the second would be Mecklenburg County Drainage District, No. 2; the fifth one organized would be Mecklenburg County Drainage District, No. 5: Provided, that so much of this section as provides for numbering the districts in each county shall not apply to districts in which bonds have been issued and sold prior to the fifth day of March, 1917.

History

(1909, c. 442, s. 19; 1917, c. 152, s. 17; C.S., s. 5338.)

§ 156-81. Appointment and organization under amended act.

  1. Method of Appointment. -
    1. If the drainage  district shall lie solely within one county, the clerk of superior court for such county shall appoint such commissioners.
    2. If the said district shall lie in more than one county, then such commissioners shall be appointed by unanimous action of the clerks of court for the counties wherein any part of such district lies.
  2. Organization. - Immediately after the appointment of the board of drainage commissioners, the clerk of the court of the county wherein such drainage proceeding is pending shall notify each of the commissioners in writing to appear at a certain time and place within the district and organize. The clerk or clerks of court, as the case may be, shall appoint one of the three members as chairman of the board of drainage commissioners, and in doing so he or they shall consider carefully and impartially the respective qualifications of each of the members for the position.
  3. Term of Office. - The term of service of the members of the board of drainage commissioners so appointed shall begin upon their appointment. Where all three commissioners are appointed at once, one commissioner shall serve for one year, one for two years, and the other for three years, the term to be computed from the first day of October following their organization. The members so serving for one, two, and three years, respectively, shall be unanimously designated by the clerk or clerks of the court. Thereafter each member shall be appointed  for three years. The clerk of the court for the county wherein the proceeding is pending shall record in the drainage record the date of appointment, the members appointed, and the beginning and expiration of their term of office.
  4. Vacancies Filled. - If a vacancy shall occur in the office of any commissioner by death, resignation, or otherwise, the remaining two members are to discharge the necessary duties of the board until the vacancy shall be filled; and if the vacancy shall be in the office of chairman or secretary, the two remaining members may elect a secretary, and the clerk or clerks, as the case may be, shall appoint one of the two remaining members to act as chairman to hold until the vacancy in the board shall be filled. The clerk of the county wherein the proceeding is pending shall keep a similar record of any appointment to fill vacancies. The person appointed to fill the vacancy shall be appointed in the manner set forth in subsection (a) of this section and shall serve until the expiration of the term of his predecessor. The secretary of the board of drainage commissioners shall promptly notify the appropriate clerk or clerks of the superior court of any vacancy in the board.
  5. Failure to Appoint. - If for any reason the clerk or clerks of the court shall fail to provide for the appointment of drainage commissioners prior to the expiration of a term, the incumbents shall continue to hold their office as commissioners until their successors are appointed and qualified. The term of office of boards of drainage commissioners heretofore elected and appointed shall expire immediately upon the appointment of new commissioners pursuant to subsection (a) of this section.
  6. Meetings. - The board shall meet once each month at a stated time and place during the progress of drainage construction, and more often if necessary. After the drainage work is completed, or at any time, the chairman shall have the power to call special meetings of the board at a certain time and place. The chairman shall also call a meeting at any time upon the written request of the owners of a majority in area of the land in the district.
  7. Compensation. - The chairman of the board of drainage commissioners shall receive compensation and allowances as fixed by the clerk of the superior court. In fixing such compensation and allowances, the clerk shall give due consideration to the duties and responsibilities imposed upon the chairman of the board. The other members of the board shall receive a per diem not to exceed twenty-five dollars ($25.00) a day, while engaged in attendance upon meetings of the board, or in the discharge of duties imposed by the board. The secretary of the board shall receive such compensation and expense allowances as may be determined by the board.
  8. Application of Section. - The provisions of this section shall apply to all drainage districts now or hereafter existing in this State, without regard to the date of organization.
  9. Repealed by Session Laws 1989 (Regular Session, 1990), c. 959, s. 3.

The manner of appointment shall be as follows:

The chairman and members of the board of drainage commissioners shall also receive their actual travel and subsistence expenses while engaged in attendance upon meetings of the board, or in the discharge of duties imposed by the board. The compensation and expense allowances as herein set out shall be paid from the assessments made annually for the purpose of maintaining the canals of the drainage district, or from any other funds of the district.

History

(1917, c. 152, s. 5; 1919, cc. 109, 217; C.S., s. 5339; 1947, c. 935; 1949, c. 956, ss. 1-3; 1957, c. 912, s. 1; 1975, c. 494; 1989 (Reg. Sess., 1990), c. 959, s. 3.)

Local Modification. - Hyde, Mattamuskeet Drainage District: C.S. 5339; Pitt: 1935, c. 469, s. (4a); 1939, c. 350; Pitt, Drainage District No. 1: 1965, c. 746, s. 1; Robeson County Drainage District Number One: 2013-254, s. 1.

CASE NOTES

Unconstitutional Delegation of Legislative Powers. - Discretion provided by subsections (a) and (i) of this section to the clerks of superior court to determine whether drainage commissioners should be elected or appointed is an unconstitutional delegation of legislative powers. Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990).

Where one of three drainage commissioners dies, the two surviving commissioners have authority, until the election and qualification of their successors, to levy an additional assessment against the lands of the district necessary to discharge the obligations of the district. Peoples Loan & Sav. Bank v. King, 212 N.C. 349, 193 S.E. 663 (1937).

Landowners in Drainage District Prohibited from Voting Deprived of Equal Protection of the Laws. - Where some landowners who lived in a drainage district could vote for the clerk who appointed the commissioners of the drainage district and some landowners could not, the defendant nonvoters had been deprived of a fundamental right; furthermore, plaintiff drainage district failed to show that the classification of voters in this case was necessary to promote a compelling governmental interest; therefore, defendants were deprived equal protection of the laws in violation of N.C. Const., Art. I, § 19. Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990).


§ 156-81.1. Treasurer.

The appointing authority as determined by G.S. 156-81 shall appoint a treasurer for the drainage district for a term not to exceed 12 months. The treasurer so appointed may be a member of the board of commissioners of the district or some other person deemed competent, and shall furnish bond as may be required by the said clerk of the superior court. The treasurer shall continue in office until a successor has been appointed and qualified.

All references in Subchapter III of Chapter 156 of the General Statutes of North Carolina, to "treasurer" or "county treasurer" or "county auditor" are hereby amended to refer exclusively to the treasurer appointed as hereinbefore provided.

History

(1963, c. 767, s. 4; 1989 (Reg. Sess., 1990), c. 959, s. 6.)

Local Modification. - Hyde: 1967, c. 1010.

§ 156-82. Validation of election of members of drainage commission.

All irregularities caused by failure of any officer whose duty it was to provide for the election of a member or members of board of drainage commissioners of any drainage district, or the failure of any candidate to make a deposit as may be required by law, shall not invalidate such election where the following facts appear affirmatively:

  1. That said election was held at the time and place prescribed by law.
  2. That a ballot box was provided for the ballots cast for drainage commissioner.
  3. That the ballots were canvassed and the results declared by the judge of the general election.
  4. That the candidate receiving the greatest number of votes was declared elected.
  5. That no candidate for election as a member of board of drainage commissioners made any deposit as prescribed by law.
  6. That the candidate receiving the majority votes at said election has already qualified and is acting as such drainage commissioner.

This section shall not apply to any election contested before March 9, 1921.

History

(1921, c. 210; C.S., s. 5339(a).)

§ 156-82.1. Duties and powers of the board of drainage commissioners.

  1. The board of drainage commissioners shall proceed with the levying of assessments, issuance of bonds and construction of canals, water retardant structures and other improvements and acquisition of equipment as approved by the court in the adjudication upon the final report of the board of viewers, either in the creation of the district or in subsequent proceedings authorized by Article 7B.
  2. The commissioners shall maintain the canals, water retardant structures, and all other improvements and equipment of the district.
  3. No State statute or rule or local government ordinance for the establishment, preservation, or maintenance of riparian buffers for the protection of water quality shall apply to the construction, operation, maintenance, or repair of canals, water retardant structures, or other improvements under the control and supervision of a board of drainage commissioners.
  4. The commissioners, with the approval of the clerk of the superior court, may use surplus funds in such manner as they deem best for (i) the maintenance of the improvements, (ii) construction or enlargement of canals and water retardant structures, or other improvements or equipment, (iii) replacement or acquisition of equipment or structures, and (iv) for payment of any or all operating expenses including salaries, fees and costs of court.
  5. The board of commissioners may agree, or contract, with any agency of the government of the United States or of North Carolina for such engineering or other services as may be provided by such agency.
  6. The board of commissioners may, in its discretion, release areas taken for rights-of-way if it determines, after the construction of the canals, that such are not needed for the purpose of the district. The release must be approved by the clerk of the superior court and such release shall be filed in the proceedings by virtue of which the district was created.
  7. The board of drainage commissioners shall have all the duties and powers as set forth and imposed upon them by the various sections of this Subchapter and all others which are necessary to promote the purposes of the district.
  8. The board of commissioners may authorize the use of stored or impounded water for recreational purposes. They may acquire title, by gift or purchase, but not by condemnation, of land to be used in conjunction with the stored and impounded water, for the development of recreational facilities.
  9. The commissioners may enter into a contract with a municipality or other nonprofit organizations, for the joint use of a facility for the impoundment or storage of water. The contract must be approved by the clerk of the superior court who has jurisdiction of the drainage district.
  10. All improvements constructed and acquired under the provisions of this Subchapter shall be under the control and supervision of the board of drainage commissioners. It shall be their duty to keep all improvements in good repair.

The term "surplus funds" is defined to mean any funds remaining after the payment of those items set forth specifically in the certificate of assessment, as well as funds provided in said certificate for maintenance and contingencies, and also, shall include maintenance and any other funds which the said commissioners may have on hand and which are not necessary for the payment of the bonds and interest thereon which have been issued by the said district.

The said commissioners are not authorized to use funds obtained from assessments upon the lands within the drainage district, for the purposes of the acquisition and development of recreational facilities. They are authorized to issue revenue bonds or notes, for the acquisition of land and construction and development of recreational facilities. The funds received from the use of the said recreational facilities, may be pledged for the payment of said revenue bonds and notes.

The terms and conditions of the issuance and payment of the said revenue bonds or notes, must be approved by the clerk of the superior court who has jurisdiction of the said drainage district.

The commissioners are authorized to enter into a contract with persons, association of persons or municipal or private corporations, for the operation of recreational facilities, owned by the drainage district. The contract may be entered into by negotiation or by award to the highest bidder at a public rental to be advertised as directed by the clerk of the superior court. The terms of the contract must be approved by the clerk of the superior court who has jurisdiction of the said drainage district.

History

(1961, c. 614, s. 2; 1965, c. 1143, s. 3; 2014-103, s. 12.)

Effect of Amendments. - Session Laws 2014-103, s. 12, effective August 6, 2014, added subsection (b1).

§ 156-82.2. Appointment of drainage commissioners.

Notwithstanding any other provision of law (including, where applicable, any special acts or local modification of general law), the General Assembly hereby appoints all sitting drainage district commissioners and drainage commission treasurers, as of the date of ratification of this section, as commissioners, officers, and treasurers of their respective districts. Said commissioners, officers, and treasurers shall continue in office until such time as appointments shall be made as provided in G.S. 156-81 and G.S. 156-81.1, which appointments shall be made by the clerk or clerks of the superior court not later than January 1, 1991.

History

(1989 (Reg. Sess., 1990), c. 959, s. 1.)

§ 156-82.3. Validation of previous actions.

  1. All expenditures heretofore incurred, and all actions heretofore taken, by a drainage district for purposes authorized by this Chapter are hereby validated notwithstanding any defect in the selection of any or all of its commissioners or any other defect.
  2. The provisions of this section are expressly made applicable to any and all bonds and other financial obligations of any such district. No action based on the alleged invalidity of the assessments heretofore made or of any such bonds or other obligations of a district shall lie  after January 1, 1991, to enjoin or contest the enforceability of any such assessment, bond, or other obligation.

History

(1989 (Reg. Sess., 1990), c. 959, s. 5.)

ARTICLE 7. Construction of Improvement.

Sec.

§ 156-83. Superintendent of construction.

The board of drainage commissioners shall appoint a competent drainage engineer of good repute as superintendent of construction. Such superintendent of construction shall furnish a copy of his monthly and final estimates to the Department of Environmental Quality, in addition to other copies herein provided which shall be filed and preserved. In the event of the death, resignation, or removal of the superintendent of construction, his successor shall be appointed in the same manner.

The board of drainage commissioners may, in its discretion, agree with the Soil Conservation Service of the Department of Agriculture or any agency of the government of the United States or of North Carolina whereby such agency may furnish the service required of the superintendent of construction. If this is done by the board, any reference in this Chapter to the superintendent of construction and/or his duties shall include or be exercised by the said agency subject to the approval of the board of commissioners.

History

(1909, c. 442, s. 20; C.S., s. 5340; 1923, c. 217, s. 3; 1925, c. 122, s. 5; 1959, c. 597, s. 3; 1961, c. 1198; 1963, c. 767, s. 5; 1973, c. 1262, s. 23; 1977, c. 771, s. 4; 1989, c. 727, s. 218(160); 1997-443, s. 11A.123; 2015-241, s. 14.30(u).)

Local Modification. - Hyde: 1957, c. 714.

Cross References. - As to application of this section, see G.S. 156-104.

Effect of Amendments. - Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in the second sentence of the first paragraph.

§ 156-84. Letting contracts.

The board of drainage commissioners shall cause notice to be given of the letting of the contract. The notice shall be posted at the courthouse door in the county wherein the district was organized. Notice shall be posted no less than 15 days prior to the opening of the bids and shall be published at least once a week for two consecutive weeks immediately prior to the opening of the bids, in some newspaper published in the county wherein such improvement is located, if such there be, and such additional publication elsewhere as they may deem expedient, of the time and place of letting the work of construction of such improvement, and in such notice they shall specify the approximate amount of work to be done and the time fixed for the completion thereof; and on the date appointed for the letting they, together with the superintendent of construction, shall convene and let to the lowest responsible bidder, either as a whole or in sections, as they may deem most advantageous for the district, the proposed work. No bid shall be entertained that exceeds the estimated cost, except for good and satisfactory reasons it shall be shown that the original estimate was erroneous. They shall have the right to reject all bids and advertise again the work, if in their judgment the interest of the district will be subserved by doing so. The successful bidder shall be required to enter into a contract with the board of drainage commissioners and to execute a bond for the faithful performance of such contract, with sufficient sureties, in favor of the board of drainage commissioners for the use and benefit of the levee or drainage district, in an amount equal to no less than 25 nor more than one hundred per centum (100%) of the estimated cost of the work awarded to him. In canvassing bids and letting the contract, the superintendent of construction shall act only in an advisory capacity to the board of drainage commissioners. The contract shall be based on the plans and specifications submitted by the viewers in their final report as confirmed by the court, the original of which shall remain on file in the office of the clerk of the superior court and shall be open to the inspection of all prospective bidders. All bids shall be sealed and shall not be opened except under the authority of the board of drainage commissioners and on the day theretofore appointed for opening the bids. The drainage commissioners shall have power to correct errors and modify the details of the report of the engineer and viewers if, in their judgment, they can increase the efficiency of the drainage plan and afford better drainage to the lands in the district without increasing the estimated cost submitted by the engineer and viewers and confirmed by the court.

History

(1909, c. 442, s. 21; 1911, c. 67, s. 4; C.S., s. 5341; 1959, c. 806; 1963, c. 767, s. 6.)

CASE NOTES

Discretionary Power of Commissioners. - This section directs that the levee or drainage commissioners shall convene with the superintendent of construction and let the work contemplated to the "lowest responsible bidder," thereby conferring a discretionary power in adjudging the responsibility of the bidder, in all respects, with which the courts will not interfere in the absence of undue influence or a procurement by fraud. Sanderlin v. Luken, 152 N.C. 738, 68 S.E. 225 (1910).

Acceptance of Work by Commissioners. - The acceptance of the work of the contractors as a compliance on their part with the contract is a judicial act of the board of commissioners and cannot be questioned except for fraud or collusion, and then only to make the commissioners personally and individually liable. Craven v. Board of Comm'rs, 176 N.C. 531, 97 S.E. 470 (1918).

Only Minor Changes in Report Authorized. - The authority given by this section to correct errors and modify the details of the report contemplates only such minor changes of detail as may occur in carrying out the plans, etc., specified in the final report and not a substantial departure therefrom. Griffin v. Board of Comm'rs, 169 N.C. 642, 86 S.E. 575 (1915).


§ 156-85. Monthly estimates for work and payments thereon; final payment.

The superintendent in charge of construction shall make monthly estimates of the amount of work done, and furnish one copy to the contractor and file the other with the secretary of the board of drainage commissioners; and the commissioners shall, within five days after the filing of such estimate, meet and direct the secretary to draw a warrant in favor of such contractor for ninety per centum (90%) of the work done, according to the specifications and contracts; and upon the presentation of such warrant, properly signed by the chairman and secretary, to the treasurer of the drainage fund, he shall pay the amount due thereon. When the work is fully completed and accepted by the superintendent he shall make an estimate for the whole amount due, including the amounts withheld on the previous monthly estimates, which shall be paid from the drainage fund as before provided.

History

(1909, c. 442, s. 22; C.S., s. 5342.)

§ 156-86. Failure of contractors; reletting.

If any contractor to whom such work has been let shall fail to perform the same according to the terms specified in his contract, action may be had in behalf of the board of drainage commissioners against such contractor and his bond in the superior court for damages sustained by the levee or drainage district, and recovery made against such contractor and his sureties. In such an event the work shall be advertised and relet in the same manner as the original letting.

History

(1909, c. 442, s. 23; 1911, c. 67, s. 5; C.S., s. 5343.)

§ 156-87. Right to enter upon lands; removal of timber.

In the construction of the work the contractor shall have the right to enter upon the lands necessary for this purpose and the right to remove private or public bridges or fences and to cross private lands in going to or from the work. In case the right-of-way of the improvement is through timber the owner thereof shall have the right to remove it, if he so desires, before the work of construction begins, and in case it is not removed by the landowner it shall become the property of the contractor and may be removed by him.

History

(1909, c. 442, s. 24; C.S., s. 5344.)

CASE NOTES

Constitutionality. - Objection that this section constitutes an unconstitutional taking of the owner's timber, giving it to the contractor without compensation, cannot be maintained. Beaufort County Lumber Co. v. Drainage Comm'rs, 174 N.C. 647, 94 S.E. 457 (1917).

Purpose of Section. - The drainage acts contemplate that all damages to the owner of lands shall be assessed, including the taking of his timber necessary to carry out its plans, this section being designed to give the owner of the timber the privilege of taking such timber if he so elects. Beaufort County Lumber Co. v. Drainage Comm'rs, 174 N.C. 647, 94 S.E. 457 (1917).

Opinions of Attorney General

Time for Removal of Timber. - Provision in this section that the owner of timber shall have the right to remove it "before the work of construction begins" means when work is begun on a particular landowner's tract. See opinion of Attorney General to Colonel Paul S. Denison, Army Corps of Engineers, 40 N.C.A.G. 197 (1969).

§ 156-88. Drainage across public or private ways.

Where any public ditch, drain or watercourse established under the provisions of this Subchapter crosses or, in the opinion of the board of viewers, should cross a public highway under the supervision of the Department of Transportation the actual cost of constructing the same across the highway shall be paid for from the funds of the drainage district, and it shall be the duty of the Department of Transportation, upon notice from the court, to show cause why it should not be required to repair or remove any old bridge and/or build any new bridge to provide the minimum drainage space determined by the court; whereupon the court shall hear all evidence pertaining thereto and shall determine whether the Department of Transportation shall be required to do such work, and whether at its own expense or whether the cost thereof should be prorated between the Department of Transportation and the drainage district. Either party shall have the right of appeal from the clerk to the superior court and thence to the appellate division, and should the court be of the opinion that the cost should be prorated then the percentage apportioned to each shall be determined by a jury.

Whenever the Department of Transportation is required to repair or remove any old bridge and/or build any new bridge as hereinbefore provided, the same may be done in such manner and according to such specifications as it deems best, and no assessment shall be charged the Department of Transportation for any benefits to the highway affected by the drain under the same, and such bridge shall thereafter be maintained by and at the expense of the Department of Transportation.

Where any public ditch, drain, or watercourse established under the provisions of this Subchapter crosses a public highway or road, not under the supervision of the Department of Transportation, the actual cost of constructing the same across the highway or removing old bridges or building new ones shall be paid for from the funds of the drainage district. Whenever any highway within the levee or drainage district shall be beneficially affected by the construction of any improvement or improvements in such district it shall be the duty of the viewers appointed to classify the land, to give in their report the amount of benefit to such highway, and notice shall be given by the clerk of the superior court to the commissioners of the county where the road is located, of the amount of such assessment, and the county commissioners shall have the right to appear before the court and file objections, the same as any landowner. When it shall become necessary for the drainage commissioners to repair any bridge or construct a new bridge across a public highway or road not under the supervision of the Department of Transportation, by reason of enlarging any watercourse, or of excavating any canal intersecting such highway, such bridge shall thereafter be maintained by and at the expense of the official board or authority which by law is required to maintain such highway so intersected.

Where any public canal established under the provisions of the general drainage law shall intersect any private road or cartway the actual cost of constructing a bridge across such canal at such intersection shall be paid for from the funds of the drainage district and constructed under the supervision of the board of drainage commissioners, but the bridge shall thereafter be maintained by and at the expense of the owners of the land exercising the use and control of the private roads; provided, if the private road shall be converted into a public highway the maintenance of the bridge shall devolve upon the Department of Transportation or such other authority as by law shall be required to maintain public highways and bridges.

History

(1909, c. 442, s. 25; 1911, c. 67, s. 6; 1917, c. 152, s. 6; C.S., s. 5345; 1947, c. 1022; 1953, c. 675, s. 26; 1957, c. 65, s. 11; 1969, c. 44, s. 78; 1973, c. 507, s. 5; 1977, c. 464, s. 34.)

§ 156-89. Drainage across railroads; procedure.

Whenever the engineer and the viewers in charge shall make a survey for the purpose of locating a public levee or drainage district or changing a natural watercourse, and the same would cross the right-of-way of any railroad company, it shall be the duty of the owner in charge of the work to notify the railroad company, by serving written notice upon the agent of such company or its lessee or receiver, that they will meet the company at the place where the proposed ditch, drain, or watercourse crosses the right-of-way of such company, the notice fixing the time of such meeting, which shall not be less than 10 days after the service of the same, for the purpose of conferring with the railroad company with relation to the place where and the manner in which such improvement shall cross such right-of-way. When the time fixed for such conference shall arrive, unless for good cause more time is agreed upon, it shall be the duty of the viewers in charge and the railroad company to agree, if possible, upon the place where and the manner and method in which such improvement shall cross such right-of-way. If the viewers in charge and the railroad company cannot agree, or if the railroad company shall fail, neglect, or refuse to confer with the viewers, they shall determine the place and manner of crossing the right-of-way of the railroad company, and shall specify the number and size of openings required, and the damages, if any, to the railroad company, and so specify in their report. The fact that the railroad company is required by the construction of the improvement to build a new bridge or culvert or to enlarge or strengthen an old one shall not be considered as damages to the railroad company. The engineer and viewers shall also assess the benefits that will accrue to the right-of-way, roadbed, and other property of the company by affording better drainage or a better outlet for drainage, but no benefits shall be assessed because of the increase in business that may come to the road because of the construction of the improvement. The benefits shall be assessed as a fixed sum, determined solely by the physical benefit that its property will receive by the construction of the improvement, and it shall be reported by the viewers as a special assessment, due personally from the railroad company as a special assessment; it may be collected in the manner of an ordinary debt in any court having jurisdiction.

History

(1909, c. 442, s. 26; C.S., s. 5346.)

CASE NOTES

Mandamus Against County Commissioners Upheld. - A judgment in proceedings seeking mandamus against county commissioners to compel them to pay an assessment of a drainage district for benefit to the public roads therein, that the defendants pay the same, with interest and costs, out of the first moneys coming into their hands and not otherwise appropriated, was valid and not in violation of the Constitution or statutes relating to taxation. Cabarrus County Drainage Dist. No. 2 v. Board of Comm'rs, 174 N.C. 738, 94 S.E. 530 (1917).


§ 156-90. Notice to railroad.

The clerk of the superior court shall have notice served upon the railroad company of the time and place of the meeting to hear and determine the final report of the engineer and viewers, and the railroad company shall have the right to file objections to the report and to appeal from the findings of the board of commissioners in the same manner as any landowner. But such an appeal shall not delay or defeat the construction of the improvement.

History

(1909, c. 442, s. 27; C.S., s. 5347.)

§ 156-91. Manner of construction across railroad.

  1. Duty of Railroad. - After the contract is let and the actual construction is commenced, if the work is being done with a floating dredge, the superintendent in charge of construction shall notify the railroad company of the probable time at which the contractor will be ready to enter upon the right-of-way of such railroad and construct the work thereon. It shall be the duty of the railroad to send a representative to view the ground with the superintendent of construction and arrange the exact time at which such work can be most conveniently done. At the time agreed upon the railroad company shall remove its rails, ties, stringers, and such other obstructions as may be necessary to permit the dredge to excavate the channel across its right-of-way. The work shall be so planned and conducted as to interfere in the least possible manner with the business of the railroad.
  2. Repealed by Session Laws 2021-23, s. 23, effective May 17, 2021.
  3. Penalty for Delay. - In case the railroad company refuses and fails to remove its track and allow the dredge to construct the work on its right-of-way, it shall be held as delaying the construction of the improvement, and such company shall be liable to a penalty of twenty-five dollars ($25.00) per day for each day of delay, to be collected by the board of drainage commissioners for the benefit of the drainage district as in the case of other penalties. Such a penalty may be collected in any court having jurisdiction, and shall inure to the benefit of the drainage district.
  4. Payment of Expense. - Within 30 days after the work is completed an itemized bill for actual expenses incurred by the railroad company for opening its tracks shall be made and presented to the superintendent of construction of the drainage improvement. Such bill, however, shall not include the cost of putting in a new bridge or strengthening or enlarging an old one. The superintendent of construction shall audit this bill and, if found correct, approve the same and file it with the secretary of the board of drainage commissioners. The commissioners shall deduct from this bill the cost of the excavation done by the dredge on the right-of-way of the railroad company at the contract price, and pay the difference, if any, to the railroad company.

History

(1909, c. 442, s. 28; 1911, c. 67, s. 7; C.S., s. 5348; 1933, c. 134, s. 8; 1941, c. 97, s. 1; 2021-23, s. 23.)

Effect of Amendments. - Session Laws 2021-23, s. 23, effective May 17, 2021, deleted subsection (b), which provided for the Utilities Commission to determine the time when the work will be done absent agreement.

§ 156-92. Control and repairs by drainage commissioners.

Whenever any improvement constructed under this Subchapter is completed it shall be under the control and supervision of the board of drainage commissioners. It shall be the duty of the board to keep the levee, ditch, drain, or watercourse in good repair, and for this purpose they may levy an assessment on the lands benefited by the maintenance or repair of such improvement in the same manner and in the same proportion as the original assessments were made, and the fund that is collected shall be used for repairing and maintaining the ditch, drain, or watercourse in perfect order: Provided, however, that if any repairs are made necessary by the act or negligence of the owner of any land through which such improvement is constructed or by the act or negligence of his agent or employee, or if the same is caused by the cattle, hogs, or other stock of such owner, employee, or agent, then the cost thereof shall be assessed and levied against the lands of the owner alone, to be collected by proper suit instituted by the drainage commissioners. It shall be unlawful for any person to injure or damage or obstruct or build any bridge, fence, or floodgate in such a way as to injure or damage any levee, ditch, drain, or watercourse constructed or improved under the provisions of this Subchapter, and any person causing such injury shall be guilty of a Class 3 misdemeanor, and upon conviction thereof may only be fined in any sum not exceeding twice the damage or injury done or caused.

History

(1909, c. 442, s. 29; C.S., s. 5349; 1947, c. 982, s. 1; 1993, c. 539, s. 1075; 1994, Ex. Sess., c. 24, s. 14(c).)

Cross References. - As to improvement, and renovation of canals, structures and boundaries, see G.S. 156-93.2 et seq.

CASE NOTES

Amendment by Implication. - Public Laws 1923, c. 231, which added former G.S. 156-118 and G.S. 156-123, had the effect of amending this section. This section authorizes the drainage commissioners to levy an assessment upon the lands in the district for the purpose of keeping up the drainage. The amending statutes provided that the commissioners could issue bonds instead of levying an assessment. In re Perquimans County Drainage Dist. No. Four, 254 N.C. 155, 118 S.E.2d 431 (1961), decided prior to the repeal of §§ 156-118 through 156-120.

Assessments Authorized on Properties Benefited by Repairs. - It is the duty of the commissioners to keep the drains and works of the districts in good repair. For this purpose they are authorized to levy assessments on the properties within the district benefited by the repairs. In re Albemarle Drainage Dist., Beaufort County No. 5, 255 N.C. 338, 121 S.E.2d 599 (1961).

Provision Limiting Assessments. - A provision in the petition limiting the amount of assessments to be made on lands within a drainage district being formed under the provisions of the statute, which was not inserted in the final judgment rendered in due course, could not at a subsequent term be supplied by amendment, being also contrary to the statutory provisions and invalid. Mann v. Mann, 176 N.C. 353, 97 S.E. 175 (1918).

Under the statute creating the Mattamuskeet Drainage District, control thereof, after its completion, is continued in the board of drainage commissioners for the purpose of its maintenance, and authority is given it to levy assessments therefor on the lands benefited in the same manner and in the same proportion as the "original assessments" were made, and collected by the same officers as those by whom the State and county taxes are collected. It was held that the term "original assessments" refers to those made for construction work on bonds issued therefor, and the assessments for maintenance should be collected by the sheriff of the county for the purpose of maintenance, as taxes for general county purposes are to be collected by him. Drainage Comm'rs of Mattamuskeet Dist. v. Davis, 182 N.C. 140, 108 S.E. 506 (1921).

Cited in Robeson County Drainage Dist. No. 4 v. Bullard, 229 N.C. 633, 50 S.E.2d 742 (1948).


§ 156-93. Construction of lateral drains.

The owner of any land that has been assessed for the cost of the construction of any ditch, drain, or watercourse, as herein provided, shall have the right to use the ditch, drain, or watercourse as an outlet for lateral drains from such land; and if the land be of such elevation that the owner cannot secure proper drainage through and over his own land, or if the land is separated from the ditch, drain, or watercourse by the land of another or others, and the owner thereof shall be unable to agree with such others as to the terms and conditions on which he may enter their lands and construct the drain or ditch, he may file his ancillary petition in such pending proceeding to the court, and the procedure shall be as now provided by law.

History

(1909, c. 442, s. 30; 1915, c. 43, s. 1; 1917, c. 152, s. 3; C.S., s. 5350.)

ARTICLE 7A. Maintenance.

Sec.

§ 156-93.1. Maintenance assessments and contracts; engineering assistance, construction equipment, etc.; joint or consolidated maintenance operations; water-retardant structures; borrowing in anticipation of revenue.

  1. The board of drainage commissioners may annually levy maintenance assessments in the same ratio as the existing classification of the lands within the district. The amount of these assessments shall be determined by the board of drainage commissioners of the district. The proceeds of these assessments shall be used for the purpose of maintaining canals of the drainage district in an efficient operating condition and for the necessary operating expenses of the district. Notice of the meeting at which the board of drainage commissioners determines the amount of the annual levy shall be mailed to the owners, as shown on the county tax records, of all property subject to assessment, or shall be published once a week for two successive calendar weeks in a newspaper having general circulation in the area. The notice shall be sent or published not more than 30 days nor less than 10 days prior to the meeting, and shall state the time, place, and purposes of the meeting. Any interested person has the right to be heard at the meeting prior to the drainage commissioners taking any action on the proposed assessment. In the event that any interested and aggrieved party disagrees with the said assessment, he may, within 20 days of the mailing of the notice of the assessment, file with the clerk for the county wherein the proceeding is pending, a notice specifically setting forth his objection. The Secretary of the District shall file in the records of the proceeding a certification setting forth the date of the mailing of the notice of the annual maintenance assessments. The clerk shall thereupon notify the senior resident superior court judge of such district who shall set the objection down for hearing at the earliest possible time.  The court shall hear the matter upon the objections duly set forth in the notice of objection.
  2. The board of drainage commissioners of a drainage district may join with the commissioners of one or more districts for the purpose of employing engineering assistance, equipment, superintendents and equipment operators for the maintenance of the canals in the several districts desiring to coordinate their maintenance operations and the drainage districts desiring to coordinate a common maintenance force may have a common office with the necessary employees for the furtherance of the joint operations for maintenance. The districts may coordinate their work without regard to county lines.
  3. The board of commissioners of a drainage district may, individually or jointly with the commissioners of other drainage districts, purchase, lease, rent, sell, or otherwise dispose of at public or private sale, equipment for the original construction or maintenance of the canals in the individual or joint districts or the said drainage districts may make contracts with private construction firms for the maintenance and construction of their canals. Contracts made with private construction companies are to be advertised as provided for the contract for the original construction of the canals.
  4. The drainage districts desiring to consolidate their maintenance services and equipment may set up a board composed of one member from each district for the purpose of control and use of the personnel and equipment employed on a joint basis, and in all matters coming before the joint board, the representative of each district shall have a voting strength equal to the proportionate acreage of his drainage district as compared with the total acreage of the combined districts.
  5. The collection of the annual maintenance assessments shall be made by the county tax collector. The board of county commissioners of the county in which a drainage district is located shall upon the request of the board of drainage commissioners of the said district cause to be shown on the tax statement or notice issued by the county to its taxpayers the amount due the drainage district by the landowners in the same manner as other special assessments are shown thereon. This amount shall be collected by the county tax collector in the same manner as county taxes and deposited to the credit of the district in which the land is located.
  6. The provisions for maintenance as set forth in this Article and elsewhere in this Subchapter III shall include water-retardant structures and the operation of such.
  7. The board of commissioners may borrow money in anticipation of revenue from maintenance assessments, as hereinbefore provided for, from which assessments the loan shall be repaid. The amount which the commissioners may borrow shall not be limited to the revenues anticipated for any one year. The terms and provisions of such loan shall be approved by the clerk of the superior court which approval shall be requested in the form of a petition and order in the proceeding by virtue of which the district was organized. The proceeds of said loan shall be used only for purposes set forth in Article 7A of Chapter 156.

The board of drainage commissioners shall have the authority to employ engineering assistance, construction equipment, superintendents and operators for the equipment necessary for the efficient maintenance of the canals, or the maintenance may be done by private contract made after due advertisement as required for the original construction work.

The drainage districts may use the equipment owned by them for the purpose of maintenance of the canals and the construction of extensions to the system of canals in the individual or several drainage districts.

History

(1949, c. 1216; 1959, c. 597, s. 4; 1961, c. 614, s. 8; 1989 (Reg. Sess., 1990), c. 959, s. 4; 1991, c. 634, s. 1.)

Local Modification. - Beaufort: 1963, c. 142.

CASE NOTES

The land clause of the Constitution of North Carolina is violated insofar as G.S. 156-138.3 dispenses with notice and an opportunity to be heard before imposing maintenance assessments on landowners within the drainage district; the imposition of these assessments was not a matter of mathematical computation, but rather, it involved some discretion on the part of the commissioners. Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990).

Cited in In re Perquimans County Drainage Dist. No. Four, 254 N.C. 155, 118 S.E.2d 431 (1961).


ARTICLE 7B. Improvement, Renovation, Enlargement and Extension of Canals, Structures and Boundaries.

Sec.

§ 156-93.2. Proceedings for improvement, renovation and extension of canals, structures and equipment.

The board of commissioners may construct, renovate, improve, enlarge and extend the drainage systems and water-retardant structures and any equipment of the district, by complying with the following provisions:

  1. The commissioners shall file with the clerk of the superior court in the county in which the district was organized, a petition which sets forth the need for the improvements requested and a general description of the proposed improvements.
  2. Upon the filing of the petition, the clerk shall then appoint a board of viewers with the same composition and qualifications as is required by G.S. 156-59. He shall direct the board of viewers to consider the proposals of the board of commissioners and report to him (i) whether or not the improvement proposed will benefit the lands sought to be benefited and (ii) whether or not the proposed improvement is practicable.
    1. If the board of viewers shall report (i) that none of the improvement proposed will benefit the lands sought to be benefited, or (ii) that it is not practicable, the petition of the board of commissioners shall be dismissed and shall not be submitted again within six months thereafter. (3) a. If the board of viewers shall report (i) that none of the improvement proposed will benefit the lands sought to be benefited, or (ii) that it is not practicable, the petition of the board of commissioners shall be dismissed and shall not be submitted again within six months thereafter.
    2. If the board of viewers shall report (i) that part or all the improvement proposed will benefit the lands sought to be benefited and (ii) the proposed improvement is practicable, then the clerk shall fix a time and place for a hearing upon said report. The said hearing shall be no less than 20, nor more than 30, days after the filing of said report.
  4. Notice of said hearing shall be given as follows:
    1. Posting and publication:
      1. Posting at the courthouse door of the county in which the proceeding is pending;
      2. Posting at five conspicuous places within the district;
      3. The notice shall be posted at least 20 days prior to said hearing;
      4. Publication in a newspaper with general circulation within the area once a week for three successive weeks.
    2. Contents:
      1. The notice shall state the time and place for the hearing;
      2. Describe in general terms the improvements proposed;
      3. That the court will consider and adjudicate the report of the board of viewers.
  5. At the date appointed for the hearing the clerk shall hear and determine any objections that may be offered to the said report. The clerk may make such modifications and changes which tend to increase the benefits of the proposed work or improvement.
    1. If the clerk shall adjudicate that (i) none of the improvements proposed will benefit any of the lands sought to be benefited or (ii) that none of the improvements are practicable, he shall dismiss the proceedings and the petition shall not be submitted again within six months thereafter. (6) a. If the clerk shall adjudicate that (i) none of the improvements proposed will benefit any of the lands sought to be benefited or (ii) that none of the improvements are practicable, he shall dismiss the proceedings and the petition shall not be submitted again within six months thereafter.
    2. If the clerk shall approve the said report, he shall then direct the board of viewers to prepare a further and detailed report which shall include the following:
      1. Specific plans and profiles together with estimates of the cost of the work recommended by the said board of viewers and an estimate of all other costs including those incurred by the board of viewers;
      2. If directed by the clerk, a new property map of the district which shall show thereon the general location of each tract of land which will be benefited by the proposed work;
      3. A statement showing the classification of benefits to be received by the several tracts of lands. This classification shall be determined and shown in the same manner as is provided for in G.S. 156-71. The board of viewers may adopt the original classification. Only those lands to be benefited by the proposed work shall be classified for assessment.
  7. Upon the filing of the said report, the clerk shall fix a time and a place for a hearing thereupon.
  8. The notice of the hearing upon said report shall be given in the same manner as required for the notice of the proposed work as required by the preceding subdivision (4) which relates to the preliminary hearing.
  9. At the date set for the hearing any landowner may appear in person, or by counsel, and file his objections in writing to the report of the board of viewers. It shall be the duty of the clerk to carefully review the report of the board of viewers and the objections filed thereto and make such changes as are necessary to render substantial and equal justice to all landowners in the district.
  10. Any landowner, party petitioner, or the drainage district may, within 10 days after the entry of the order or judgment by the clerk upon the report of the board of viewers, appeal to the superior court in session time or in chambers. The procedures for taking appeal under Article 27A of Chapter 1 of the General Statutes apply, except as provided otherwise by this Subchapter. All of the terms and provisions of G.S. 156-75 apply to the appeal.

The board of viewers shall make their report to the clerk within 30 days after their appointment unless the time shall be extended by the court upon the showing of a meritorious cause for the extension.

The board of viewers shall have, insofar as applicable, the same powers and duties as relate to the final report as are required and provided in Article 5 by G.S. 156-69, 156-70, 156-70.1 and 156-71.

The board of viewers shall make their report to the clerk within 60 days after their appointment. The clerk may extend this time upon the showing of meritorious cause for the extension.

The expense of the board of viewers, their assistants, and all costs incurred by them shall be paid from any surplus funds of the district, as defined in this Subchapter, or if such are not sufficient, by the same means of financing as are available for such purposes when the district is originally organized. The estimate of the expenditures shall be shown in its report and all amounts of money expended shall be reimbursed when funds are available.

Also, a notice of said hearing shall be mailed at least 10 days prior to the hearing, to those landowners as their names appear upon the statement of classification of benefits filed with the report of the board of viewers and whose names and addresses are shown on the tax scrolls of the county wherein their land is situated. The attorneys for, or commissioners of, the district shall use due diligence to determine the said names and addresses from the tax scrolls.

The filing with the clerk of the superior court of a certificate by the attorney for, or the commissioners of, the district, that due diligence has been used to obtain the names and addresses from the tax scrolls and that notice has been mailed to those persons at the address shown, shall be sufficient showing that this provision has been complied with. The certificate shall state the names, addresses and dates to whom such notice was mailed.

If the clerk shall adjudicate that the benefits which will accrue to the lands affected are greater than the cost of the improvements, the report of the board of viewers shall be confirmed. The clerk shall then direct the commissioners of the district to proceed with the improvements as approved.

If, however, the clerk finds that the cost of the improvements is greater than the resulting benefits that will accrue to the lands affected, the clerk shall dismiss the proceedings.

History

(1961, c. 614, s. 1; 1969, c. 192, s. 2; 1999-216, s. 21.)

CASE NOTES

Purpose of Article. - The legislature, when it enacted Subchapter III, authorizing the establishment of drainage districts, made no provision for an alteration and enlargement of the boundaries subsequent to the date of creation, for the simple reason that the boundaries as finally determined had to include all lands benefited by the improvement, and the lands so benefited were required to be assessed for the benefits accruing, and hence no assessment could be levied either for original construction or for cost of maintenance on lands beyond the boundaries. However, the 1961 legislature, recognizing that lands not originally expected to receive benefit from works to be performed by a drainage district might, by changing conditions and the modification or enlargement and maintenance of the drains, receive benefits from work subsequently proposed to be done, made provision for the enlargement of the boundaries of drainage districts. In re Albemarle Drainage Dist., Beaufort County No. 5, 255 N.C. 338, 121 S.E.2d 599 (1961).


§ 156-93.3. Extension of boundaries.

The boundaries of a drainage district may be extended upon compliance with the requirements and procedures as follows:

  1. The request for extension shall be made by the board of commissioners of the district, in the form of a petition in the name of the drainage district, to the clerk of the superior court of the county wherein the district was originally organized. The proceeding may be ex parte or adversary.
  2. The area proposed to be included within the boundaries of the district must be either:
    1. Located upstream and adjacent to the existing boundary of the district and must have as its only source of drainage either:
      1. The canals of the district; or
      2. Natural or artificial drain ways which empty into or are benefited by the canals of the district; and
      3. Must be within the watershed of the existing district; or
    2. Adjacent to the existing boundary of the district and have a common outfall with the existing district.
    1. In the event the area meets the requirements of (2)a, it shall only be necessary for the petition to be filed by the board of commissioners of the district. (3) a. In the event the area meets the requirements of (2)a, it shall only be necessary for the petition to be filed by the board of commissioners of the district.
    2. In the event the area meets the requirement of (2)b of this section, the owners of fifty percent (50%) or more of the land area which it is proposed to include or forty percent (40%) or more of the resident landowners who will be benefited within such area, must join with and be petitioners with the commissioners of the existing district, asking for the extension of boundaries and inclusion of land within the existing district.
  4. Upon filing of the petition for extension of the boundaries, the clerk of the superior court shall appoint a board of viewers with the same composition and qualifications as is required by G.S. 156-59. The board of viewers shall examine the area proposed to be included within the boundaries of the district to determine whether or not, in their opinion, it is feasible and equitable to include said area within the boundaries of the district, and report their finding to the court. The report must be made within 30 days after the appointment of said board of viewers. The time for filing said report may be extended by the clerk upon a showing of a meritorious cause for the extension.
  5. If the board of viewers shall report that the proposed extension of boundary is not feasible or equitable, the petition shall be dismissed and shall not be submitted again until after six months from date of dismissal.
    1. If the board of viewers shall report that the proposed extension of boundary is feasible and equitable, then the clerk of the superior court shall order the board of viewers to make a further and detailed report which shall include a map of the area that is proposed to be annexed which shall show: (6) a. If the board of viewers shall report that the proposed extension of boundary is feasible and equitable, then the clerk of the superior court shall order the board of viewers to make a further and detailed report which shall include a map of the area that is proposed to be annexed which shall show:
      1. Boundaries of the existing district;
      2. Boundaries of the proposed extension;
      3. A general location of each individual tract of land which will be benefited.
    2. In the event no additional work is proposed, the board of viewers shall report the following:
      1. The allocation of benefits derived from the existing canals, structures or other improvements, between the existing district and the area to be included within the boundaries of the existing district, which shall be a percentage figure and shall be the major factor for the determination of the requirements set forth in the succeeding paragraphs 2 and 3;
      2. The amount of money, if any, which the owners of the land to be included within the district should pay for the use of the canals, structures or other improvements of the district;
      3. The percent of the cost of maintenance and operating expenses which the owners of the land to be included, should pay;
      4. Classification of the additional lands as to benefits derived from the existing canals, structures or other improvements of the district which shall be in accordance with the provisions of G.S. 156-71. The area of the existing district shall not be classified, unless directed by the clerk of the superior court;
      5. The names and addresses of the landowners within the areas proposed to be included insofar as may be determined from the tax records of the county;
      6. Such other information as may be appropriate or as may be directed by the clerk of the superior court.
    3. In the event additional work is proposed, the report of the board of viewers shall also contain the information required in G.S. 156-93.2, as it applies to the final report of the board of viewers.
  7. The board of viewers shall file their detailed or final report within 60 days after their appointment. The time for filing of said report may be extended by the clerk upon a showing of meritorious cause for the extension.
  8. Upon the filing of said report those landowners in the area to be included who are not parties to the proceedings and who do not desire to sign the petition, shall be made parties defendant. Summons shall be served upon the defendants in the manner required for special proceedings. There shall be attached to and served with the summons, in lieu of a copy of the petition or final report, a statement which shall set forth (i) the purpose of the proceedings and (ii) that the report of the board of viewers is on file in the office of the clerk of the superior court and may be examined by persons interested.
  9. The attorney for, or the commissioners of, the district shall use due diligence to give notice to every landowner within the area proposed to be included, who has not signed the petition asking for such extension of boundaries and/or the proposed improvements.
  10. Upon filing of said certificate the clerk shall fix a time and place for a hearing upon said report, which date shall be no less than 20 days after filing of said certificate.
  11. Notice of said hearing shall be given as follows:
    1. Posting and publication:
      1. Posting at the courthouse door of the county in which the proceeding is pending;
      2. Posting at five conspicuous places in the district and in the area to be included;
      3. The notice shall be posted at least 20 days prior to the said hearing;
      4. Publication in a newspaper with general circulation within the area once a week for three successive weeks;
      5. Mailing a copy of the notice to those persons for whom an address is shown in the certificate filed by the attorney for, or commissioners of, the district.
    2. Contents:
      1. The notice shall state the time and place for the hearing;
      2. Describe in general terms the area proposed to be included and work proposed, if any;
      3. That the court will consider and adjudicate the report of the board of viewers.
  12. At the date set for hearing any landowner may appear in person or by counsel and file his objection in writing to the report of the board of viewers. It shall be the duty of the clerk to carefully review the report of the board of viewers and the objection filed thereto and make such changes as are necessary to render substantial and equal justice to all of the landowners and the existing district.
  13. The clerk shall, after making adjustments in the report of the board of viewers, if any, determine:
    1. If the area(s) of land sought to be included, or any part thereof, is, or will be, benefited by the canals, structures or other improvements of the district.
    2. If such area(s) should equitably be included within the boundary of the district because of the benefits received or to be received from the district.
    3. If the requirements of the preceding subdivision (3)b, if applicable, are met.
  14. If the clerk shall determine either:
    1. That no part of the area proposed to be included is or will be benefited by the canals, structures or other improvements of the district and equitably should not be included within the boundaries of the district; or
    2. That the requirements of the preceding subdivision (3)a or b, whichever is applicable, have not been complied with; he shall dismiss the proceeding.
  15. Any landowner, party petitioner, or the drainage district may, within 10 days after the entry of an order or judgment by the clerk upon the report of the board of viewers, appeal to the superior court in session time or in chambers. The procedures for taking appeal under Article 27A of Chapter 1 of the General Statutes apply, except as provided otherwise by this Subchapter. All of the terms and provisions of G.S. 156-75 apply to the appeal.
  16. The duties and powers of the board of commissioners as to those lands included within the district by the current proceedings shall be the same as to those in the original proceeding.

Should the area proposed to be included within the boundary of the enlarged district embrace one or more existing drainage districts, the commissioners of any such district or districts may join in a petition to the court asking for the extension of boundaries of the existing district.

The joinder in the petition by the commissioners of such drainage district in the name of the district shall have the effect of including in the petition all of the land within said existing drainage district to the same extent as if the petition had been signed individually by each landowner of the district. The total acreage in such district or districts shall be included as land in the petition in determining whether or not the requirements under this section have been complied with.

The filing of a certificate by the attorney for, or the commissioners of, the district that due diligence has been used to notify each of said defendant landowners shown by the report of the board of viewers, either by personal service or by publication, shall be sufficient showing of compliance with this provision. The certificate shall contain the names of such landowners served personally, the date of service and the names of those served by publication and the date of service by publication.

If the clerk shall determine that all of the three preceding requirements are met, he shall direct that the area(s) of land to be included within the boundaries of the district, in accordance with the provisions of the report of the board of viewers, as approved.

History

(1961, c. 614, s. 1; 1965, c. 1143, s. 4; 1969, c. 192, s. 3; cc. 440, 1002; 1999-216, s. 22.)

§ 156-93.4. Coordination of proceedings under §§ 156-93.2 and 156-93.3

In the event a proceeding shall be instituted as provided for in G.S. 156-93.2 and shall also include the extension of boundaries, as provided for in G.S. 156-93.3, the provisions of G.S. 156-93.2 and 156-93.3 shall be coordinated and if there shall be any conflict as to procedure, that provided for in G.S. 156-93.3 shall be followed.

History

(1961, c. 614, s. 1.)

§ 156-93.5. Assessments and bonds for improvement, renovation, enlargement and extension.

The board of drainage commissioners shall, for the purposes set forth in this Article, levy the necessary assessments and may issue bonds or other debentures for the purpose of providing funds for the construction or acquisition of any of the improvements or works authorized by this Article. The time and manner of levying assessments and the issuance of bonds or other debentures and the terms thereof shall be the same as provided for in Article 8 of Subchapter III.

History

(1961, c. 614, s. 1.)

§ 156-93.6. Rights-of-way and easements for existing districts.

All drainage districts heretofore created shall be deemed to own an easement or right-of-way in and to those lands upon which there are existing canals and spoil banks.

Whenever the proposed repairs, maintenance or other improvements make it necessary for the drainage district to acquire additional land for easements or right-of-way, the procedure to secure the same shall be in accordance with G.S. 156-70.1.

History

(1961, c. 614, s. 1.)

CASE NOTES

Applied in Taylor v. Askew, 17 N.C. App. 620, 195 S.E.2d 316 (1973).


§ 156-93.7. Existing districts may act together to extend boundaries within watershed.

If there shall be more than one drainage district in a drainage basin, or watershed, the board of drainage commissioners of any of the districts may initiate or join separately or collectively with the commissioners of one or more of other drainage districts, in the drainage basin or watershed, and/or with the owners of land within the drainage basin, whose lands are not included within an existing drainage district in a petition to the court, asking for the creation of a larger drainage district, or the extension of boundaries of one of the existing districts.

The joinder in the petition by the commissioners of an existing drainage district, acting in the name of the district, shall have the effect of including all of the land assessed within the drainage district, in the petition asking for the creation of the larger drainage district or the extension of boundaries of an existing district. The total area of assessed land, within the existing drainage district shall be included, as land in the petition, in determining whether or not the requirement of G.S. 156-93.3(3)b have been fulfilled.

The provisions of this section shall apply in proceedings provided for in G.S. 156-93.2 and 156-93.3.

History

(1961, c. 614, s. 1; 1965, c. 1143, s. 5.)

ARTICLE 8. Assessments and Bond Issue.

Sec.

§ 156-94. Total cost for three years ascertained.

After the classification of lands and the ratio of assessments of the different classes to be made thereon has been confirmed by the court, the board of drainage commissioners shall ascertain the total cost of the improvement, including damages awarded to be paid to owners of land, all costs and incidental expenses, and also including an amount sufficient to pay the necessary expenses of maintaining the improvement for a period of three years after the completion of the work of construction, not exceeding ten per centum (10%) of the estimated actual cost of constructing the drainage works or the contract price thereof if such contract has not been awarded, and after deducting therefrom any special assessments made against any railroad or highway, and, thereupon, the board of drainage commissioners, under the hand of the chairman and secretary of the board, shall certify to the clerk of the superior court the total cost, ascertained as aforesaid; and the certificate shall be forthwith recorded in the drainage record and open to inspection of any landowner in the district.

History

(1909, c. 442, s. 31; 1911, c. 67, s. 8; C.S., s. 5351; 1923, c. 217, s. 4.)

Cross References. - As to application of this section, see G.S. 156-104.

§ 156-95. Assessment and payment; notice of bond issue.

If the total cost of the improvement is less than an average of twenty-five cents (25 › ) per acre on all the land in the district, the board of drainage commissioners shall forthwith assess the lands in the district therefor, in accordance with their classification, and said assessment shall be collected in one installment, by the same officer and in the same manner as State and county taxes are collected, and payable at the same time. In case the total cost exceeds an average of twenty-five cents (25 › ) per acre on all lands in the district, the board of drainage commissioners shall give notice for three weeks by publication in some newspaper published in a county in which the district, or some part thereof, is situated, if there be any such newspaper, and also by posting a written or printed notice at the door of the courthouse and at five conspicuous places in the district, reciting that they propose to issue bonds for the payment of the total cost of the improvement, giving the amount of bonds to be issued, the rate of interest that they are to bear, and the time when payable. Any landowner in the district not wanting to pay interest on the bonds may, within 15 days after the publication of such notice, pay to the county treasurer the full amount for which his land is liable, to be ascertained from the classification sheet and the certificate of the board showing the total cost of the improvement, and have his lands released from liability to be assessed for the improvement; but such land shall continue liable for any future assessment for maintenance or for any increased assessment authorized under the law.

History

(1909, c. 442, s. 32; 1911, c. 67, s. 9; C.S., s. 5352.)

CASE NOTES

Assessments Are Not "Taxes." - Assessments made for the maintenance of a drainage district, incorporated under the provisions of the statute, are not "taxes," even though they may be so incorrectly denominated therein; they are only assessments made for the special benefits to the land within the district, and are not imposed for the purpose of general revenue. Drainage Comm'rs v. Davis, 182 N.C. 140, 108 S.E. 506 (1921).

Drainage district assessments are not taxes. Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990).

Assessments upon lands in a drainage district are liens in rem, resting upon the lands, into whosesoever hands they may be at the time they accrue, and do not come within the terms of a warranty against encumbrances by deed. Taylor v. Commissioners of Moseley Creek Drainage Dist., 176 N.C. 217, 96 S.E. 1027 (1918).

Grantee of Timber Interest Not Liable for Assessment. - A conveyance of the timber, under the usual deed, providing for its cutting and removal from the land within a stated period, is regarded as a severance thereof from the land, and the grantee in the deed is not liable for an assessment for drainage purposes laid thereon. Dover Lumber Co. v. Board of Comm'rs, 173 N.C. 117, 91 S.E. 714 (1917).

No owner is responsible for other owners by reason of their failure to pay, except through the method of assessment provided by the statute. Carter v. Board of Drainage Comm'rs, 156 N.C. 183, 72 S.E. 380 (1911).

Liability for Additional Assessments. - The land of the owner who has paid his assessments, as provided by this section, is subject to additional assessments, the lands in the district being liable until the original bond issue for making the improvements or indebtedness incurred therefor is paid in full. Virginia-Carolina Joint Stock Land Bank v. Watt, 207 N.C. 577, 178 S.E. 228 (1935).

Power of Courts to Enjoin Collection of Assessments. - The courts, in proper instances, have the power to interfere and stay amounts assessed against the owner of lands within an established drainage district, when it appears that the commissioners, in carrying out the ministerial duties imposed on them, endeavored to collect from him a sum in excess of their own assessment, or that they had made out the rolls in utter disregard of the classifications and ratio of assessments established by the final report, or that they had made such changes in the plans and specifications thereof as to exceed their powers and to work substantial wrong and hardship upon the landowner, if he was not guilty of laches and had not unduly delayed asserting his rights. Griffin v. Board of Comm'rs, 169 N.C. 642, 86 S.E. 575 (1915).

Where a drainage district has been fully and lawfully established in accordance with the statute, the commissioners have been duly appointed, and bonds have been issued in furtherance of the scheme, an injunction restraining the collection of the assessment against the landowners therein, at the suit of one of them, will not issue, as against the interest of the holder of the bonds, unless it clearly appears that the commissioners have substantially departed, to the injury of the claimant, from the scheme set forth in the final report of the viewers, etc. Griffin v. Board of Comm'rs, 169 N.C. 642, 86 S.E. 575 (1915).

Purchaser Takes with Notice of Assessments. - The purchaser of lands within a drainage district formed under the provisions of this Chapter is fixed by the statute with notice of the assessments and the time thereof, whether a resident of another state or not. Pate v. Banks, 178 N.C. 139, 100 S.E. 251 (1919).

Presumption as to Notice. - The presumption is in favor of the regularity of the official proceedings of the commissioners of a drainage district, and applies to landowners within the district as to the sufficiency of notice of a meeting duly had to assess such owners according to benefits received from the improvements therein. Mitchem v. Gaston County Drainage Comm'n, 182 N.C. 511, 109 S.E. 551 (1921).

Waiver of Notice. - Where the owner of land in a drainage district, formed under the provisions of the statute, appears at a meeting of the commissioners held for the purpose and is silent, making no objection or exception to the assessment imposed upon his land, the question as to whether he had been sufficiently served with notice of the meeting becomes immaterial, his appearance being construed as a waiver thereof, or rather as dispensing with formal notice, and he cannot collaterally, by injunction, restrain the collection of these assessments by sheriff's sale. This also applies to his grantee who knew that the lands were situate within the district and subject to the assessments. Mitchem v. Gaston County Drainage Comm'n, 182 N.C. 511, 109 S.E. 551 (1921).

Cited in Board of Drainage Comm'rs v. Jarvis, 211 N.C. 690, 191 S.E. 514 (1937).


§ 156-96. Failure to pay deemed consent to bond issue.

Every person owning land in the district who shall fail to pay to the treasurer the full amount for which his land is liable, as aforesaid, within the time above specified, shall be deemed as consenting to the issuance of drainage bonds, and in consideration of the right to pay his proportion in installments, he hereby waives his rights of defense to the payment of any assessments which may be levied for the payment of bonds, because of any irregularity, illegality, or defect in the proceedings prior to this time, except in case of an appeal, as hereinbefore provided, which is not affected by this waiver. The term "person" as used in this Subchapter includes any firm, company, or corporation.

History

(1909, c. 442, s. 33; 1911, c. 67, s. 10; C.S., s. 5353; 1963, c. 767, s. 4.)

CASE NOTES

Cited in Board of Drainage Comm'rs v. Jarvis, 211 N.C. 690, 191 S.E. 514 (1937).


§ 156-97. Bonds issued.

At the expiration of 15 days after publication of notice of bond issue the board of drainage commissioners may issue bonds of the drainage district for an amount equal to the total cost of the improvement, less such amounts as shall have been paid in in cash to the treasurer. Bonds issued by the board of drainage commissioners shall comply with the following provisions:

  1. The bonds shall be serial bonds;
  2. The denomination of the bonds shall be not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000);
  3. The interest upon said bonds shall not be more than fourteen percent (14%) per annum, from the date of issue and payable semiannually;
  4. The first annual installment of principal shall fall due not less than three years nor more than six years after the date of the bonds;
  5. Each annual installment of principal shall be not less than two percent (2%) nor more than ten percent (10%) of the total bonds authorized;
  6. If the total amount of bonds to be issued does not exceed ten percent (10%) of the total amount of the assessment, the board of commissioners may, in their discretion, not issue any bonds and in lieu thereof issue assessment anticipation bonds which shall mature over a period of not less than four nor more than 10 years and shall be payable in equal annual installments. The interest rate on said assessment anticipation bonds shall not be more than fourteen percent (14%) per annum;
  7. The board of commissioners may issue bond anticipation note or notes to be redeemed and paid upon the sale and delivery of bonds herein provided for. If such bond anticipation note or notes are issued, at the discretion of the commissioners, such may be done after the bonds have been sold and prior to the printing and delivery of said bonds and must be paid from the proceeds of said bonds when delivered.

History

(1909, c. 442, s. 34; 1911, c. 67, s. 11; 1917, c. 152, s. 12; C.S., s. 5354; 1923, c. 217, s. 5; 1955, c. 1340; 1957, c. 1410, s. 1; 1961, c. 601, s. 1; 1963, c. 767, s. 4; 1969, c. 878; 1985, c. 136, ss. 1, 2.)

Cross References. - As to application of this section, see G.S. 156-104.

CASE NOTES

Bond Issue Upheld Despite Interest of Clerk Appointing Commissioners. - An issue of bonds by a drainage commission was not void by reason of the fact that the clerk of the court who appointed the commissioners owned an interest in a tract of land within the drainage district, as such an interest was too minute and was not directly the subject matter of the litigation. White v. Lane, 153 N.C. 14, 68 S.E. 895 (1910).

Cited in Board of Comm'rs v. Gaines, 221 N.C. 324, 20 S.E.2d 377 (1942); In re Albemarle Drainage Dist., Beaufort County No. 5, 255 N.C. 338, 121 S.E.2d 599 (1961).


§ 156-97.1. Issuance of assessment anticipation notes.

In lieu of the bonds provided for in G.S. 156-97, the board of drainage commissioners may issue assessment anticipation notes of the district for an amount not to exceed the assessment levied by the commissioners and approved by the clerk of the superior court, less such amounts as shall have been paid in in cash to the treasurer. It shall be optional with the board of drainage commissioners in issuing assessment anticipation notes to issue serial notes in any denominations bearing not more than fourteen percent (14%) interest from the date of issue, payable semiannually. The first annual installment of principal shall be due not less than one year nor more than two years after date thereof, and each annual installment of principal shall not be less than two percent (2%) nor more than twenty-five percent (25%) of the total amount of notes authorized and issued.

Such assessment anticipation notes, when issued, shall have the same force and effect of bonds issued under the provisions of this Article and shall be collectible in the same manner.

The commissioners may issue either serial notes or an amortized note.

History

(1957, c. 912, s. 2; 1961, c. 601, s. 3; 1963, c. 767, ss. 4, 7; 1985, c. 136, s. 3.)

§ 156-98. Form of bonds and notes; excess assessment.

All bonds and notes authorized and issued shall be signed by the chairman and secretary of the board of drainage commissioners and the corporate seal of the district affixed thereto, and the interest coupons shall be authenticated by the facsimile signature of the secretary, and both the principal and interest coupons shall be payable at some bank or trust company to be designated by the board of drainage commissioners and incorporated in the body of the bond. The form of the bond shall be authorized by the board of drainage commissioners or by the board and the purchaser of the bonds jointly, at the option of the board.

All bonds of reclamation districts shall have that fact noted upon the face of the bond, either by stamping or printing the same thereon. All bonds of improvement districts shall also have that fact noted upon their face.

For the purpose of meeting any possible deficit in the collection of annual drainage assessments or any deficit arising out of unforeseen contingencies there shall be levied, assessed and collected during each year when either the interest or principal or both interest and principal on the outstanding bonds shall be due, an assessment as will yield ten percent (10%) more than the total of interest and principal due in such years; that is to say, for every one hundred dollars ($100.00) of principal and interest, or either, due in any one year, there shall be levied, assessed and collected a sufficient drainage assessment to yield one hundred and ten dollars ($110.00) for such year. When this excess of drainage tax so levied, assessed and collected shall accumulate so that the aggregate surplus in the hands of the treasurer of the district shall amount to more than fifteen percent (15%) of the total principal of the bonds of the district outstanding and unpaid, then such surplus above fifteen percent (15%) thereof may be available for expenditure by the board of drainage commissioners in the maintenance and upkeep of the drainage work in such district in the manner provided by law: After all the drainage assessments have been collected except the last assessment, if the surplus which has accumulated amounts to more than five percent (5%) of the total issue of bonds of the district, then and in such event the board of drainage commissioners may in their discretion apply such excess above five percent (5%) toward the reduction of the total amount embraced in the last assessment, reducing the same pro rata as to each tract of land embraced in the district, and having regard to the classification, to the end that such reduction shall be fairly and justly made. As to such surplus as shall accumulate in the hands of the treasurer of the district over and above all obligations of the district which may be due, the treasurer is hereby directed to deposit same in some solvent bank or banks at the highest rate of interest obtainable therefor, and the said treasurer shall be authorized, if he deems it necessary, to demand satisfactory security for such deposits; but the said treasurer shall reserve the right to demand a repayment at any time upon giving not exceeding 30 days' notice thereof. Whereas the proceeds of the first drainage assessment may not be collected and in the hands of the treasurer of the district prior to the maturity of the first and second semiannual installments of interest upon the issue of bonds, the treasurer of the district is hereby directed to pay the interest coupons first maturing and also the interest coupons next maturing, if necessary, out of funds in his hands for the purpose of maintaining the improvement for the period of three years after the completion of the work or construction. As a surplus fund with the treasurer arising out of the annual additional assessment of ten per centum (10%) shall accumulate in any one year in excess of fifteen per centum (15%) of the total principal of the bonds of the district outstanding and unpaid, as herein provided, the treasurer shall transfer in each of such years such surplus fund to the fund for maintaining the improvement after completion, as a reimbursement of the fund formerly withdrawn therefrom for the payment of the first and second installments of interest coupons until such reimbursement shall be fully made. The treasurer shall thereafter keep separate accounts of the proceeds of such additional ten percent (10%) assessment remaining each year after the payment of all maturing obligations, and also a separate account of the funds provided for maintaining the improvement for the period of three years after completion of improvement and all payments therefrom and reimbursements thereto.

History

(1917, c. 152, s. 13; C.S., s. 5355; 1923, c. 217, s. 6; 1927, c. 98, s. 5; 1961, c. 601, s. 2.)

Cross References. - As to application of this section, see G.S. 156-104.

CASE NOTES

Cited in Robeson County Drainage Dist. No. 4 v. Bullard, 229 N.C. 633, 50 S.E.2d 742 (1948); In re Perquimans County Drainage Dist. No. Four, 254 N.C. 155, 118 S.E.2d 431 (1961).


§ 156-99. Application of funds; holder's remedy.

The commissioners of the district may sell the bonds or notes of the district for not less than par and devote the proceeds to the payment of the work as it progresses and to the payment of the other expenses of the district provided for in this Subchapter. The proceeds from the sale of the said bonds or notes shall be for the exclusive use of the levee or drainage district specified therein. A copy of said bonds or notes shall be recorded in the drainage record. If serial bonds or notes are issued it shall only be necessary to record the first numbered bond or note, with a statement showing the serial numbers, the amount and the due dates of principal and interest.

There shall be set out specifically in the drainage record of said proceeding, a description of the lands embraced in the district for which the tax or assessment has not been paid in full, and which is subject to the lien of the said obligations. A reference to the tract number on the map of the district as recorded in the drainage proceedings or in the office of the register of deeds is sufficient description.

If any installment of principal or interest represented by the bonds and notes shall not be paid at the time and in the manner when the same shall become due and payable, and such default shall continue for a period of six months, the holders of such bonds or notes upon which default has been made may have a right of action against the drainage district or the board of drainage commissioners of the district, its officers, including the tax collector and treasurer, directing the levying of a tax or special assessment as herein provided, and the collection of same, in such sum as may be necessary to meet any unpaid installments of principal and interest and costs of action; and such other remedies are hereby vested in the holders of such bonds or notes in default, as may be authorized by law and the right of action is hereby vested in the holders if such bonds or notes upon which default has been made, authorizing them to institute suit against any officer on his official bond for failure to perform any duty imposed by the provisions of this Subchapter.

The official bond for the tax collector and treasurer shall be liable for the faithful performance of the duties herein assigned them. Such bond may be increased by the board of county commissioners.

History

(1909, c. 442, s. 34; 1911, c. 67, s. 11; c. 205; C.S., s. 5356; 1923, c. 217, s. 7; 1963, c. 767, s. 8.)

§ 156-100. Sale of bonds.

In making the sale of drainage bonds the board of drainage commissioners shall prepare a notice of such sale containing the usual and appropriate information regarding the terms and provisions of the bonds, and shall publish the same for at least a period of two weeks in at least one paper of general circulation published within the State and in at least one other newspaper of large circulation among the buyers of bonds, in which they shall invite sealed bids from prospective purchasers to be opened on a certain day, and may require a cash deposit to accompany all bids, and shall reserve the right to reject any and all bids. In such notice the commissioners may hold in reserve information as to the date when the first installment of principal shall fall due, the annual installments of principal to be paid, the number of years within which the serial bonds are to be paid, the form of the bonds, and the name of the bank or trust company at which the interest coupons and the installments of principal are to be made payable, and shall state that the information and data so withheld may subsequently be agreed upon between the drainage commissioners and the purchaser of the bonds; or the board of drainage commissioners in their advertisement asking bids may make optional propositions in the respects above recited, inviting bids as to each kind of bond so proposed. The board of drainage commissioners shall accept the highest bona fide bid for such bonds and issue and sell the same accordingly, provided the highest bid shall equal or exceed the par value of the bonds with any accrued interest thereon. If no satisfactory bid shall be received, the board of drainage commissioners may readvertise the bonds for sale in the manner above provided, or they may accept any private bid for the bonds at not less than their par value, with any accrued interest thereon. The board of drainage commissioners shall in good faith make diligent effort to sell the bonds at a price not less than their par value, with accrued interest. Bonds of any drainage district heretofore sold or contracted to be sold by the Local Government Commission in the manner provided by the Local Government Act, either alone or in conjunction with the board of drainage commissioners, shall be deemed to have been lawfully sold or contracted to be sold.

History

(1909, c. 442, s. 34; 1911, c. 67, s. 11; 1917, c. 152, s. 15; C.S., s. 5357; 1941, c. 142.)

Local Modification. - Brunswick, Columbus: 1929, c. 299.

Cross References. - As to application of this section, see G.S. 156-104.

CASE NOTES

The remedy provided by statute to the holders of drainage bonds to enforce payment of their obligations is by action against the drainage district and its commissioners and the tax collector and treasurer to compel these officers to perform their legal duties in pursuing the statutory procedure for the collection and application of drainage assessments, which remedy is adequate and exclusive, and the holder of past-due bonds may not maintain an action against the owner of land within the district to enforce the lien of delinquent drainage assessments against the land. Wilkinson v. Boomer, 217 N.C. 217, 7 S.E.2d 491 (1940).

Service by Publication Held Insufficient. - Where, in an action to foreclose a tax lien, service of process on "bondholders, lien holders or other persons having or claiming some interest in the land" was had by publication, but the publication made no reference to any drainage district, drainage assessment, liens or bonds or bondholders of any drainage district, the publication was held insufficient to give the court jurisdiction of the holders of bonds of the drainage district in which the lands or any part of them lay, and the judgment therein could not preclude the bondholders from exercising their remedy under prescribed conditions to have the drainage district levy additional assessments against the lands for the purpose of paying the drainage bonds. Board of Comm'rs v. Gaines, 221 N.C. 324, 20 S.E.2d 377 (1942).


§ 156-100.1. Sale of assessment anticipation notes.

Should assessment anticipation notes be issued by a drainage district under the provisions of G.S. 156-97.1, the board of drainage commissioners may accept any private bid for said assessment anticipation notes at not less than their par value, with accrued interest thereon without the necessity of advertising the sale hereof as is provided for in the sale of bonds under the provisions of G.S. 156-100.

History

(1957, c. 912, s. 3.)

§ 156-100.2. Payment of assessments which become liens after original bond issue.

Payment of assessments not included in the original bond or note issue shall be financed in the following manner:

  1. In the event of appeal from the order of the clerk of superior court approving the final report of the board of viewers, the assessment approved by the appellate court shall be due and payable 30 days from the entry of the final order in said appeal.
  2. In the event land should be included within the district for any other reason, the assessment thereon shall be due and payable 30 days after the date of the agreement or court order by which said land is included.
  3. In the event the assessments referred to in the preceding subdivisions (1) and (2) are not paid at the expiration of the said 30-day period, then the commissioners may provide for installment payments of said assessment upon such terms as may be approved by the clerk of the superior court who has jurisdiction of the said drainage proceeding.

The commissioners of the district may issue bonds or notes for an amount equal to the total of the installment payments, upon terms as approved by the clerk of the superior court. The lien of the assessment, the rights of the bond or note holder, and all other liabilities and rights shall be the same as prescribed in this Subchapter III for other bonds and notes of the district.

History

(1963, c. 767, s. 9.)

§ 156-100.3. Sinking fund.

The commissioners of the drainage district may establish a sinking fund to be used to pay bonds and notes issued by the district. The terms and conditions by which the said sinking fund is established shall be approved by the clerk of the superior court who has jurisdiction of said district.

History

(1963, c. 767, s. 10.)

§ 156-101. Refunding bonds issued.

In any case where the board of drainage commissioners of any drainage district have issued or may issue bonds for the purpose of constructing or completing the drainage works in such district, the payment of which at maturity would in the judgment of the board of drainage commissioners be an unreasonable burden on the owners of the lands in such district assessed for the payment of such bonds and interest, or if it shall appear for other good and substantial reasons that the welfare of the district and the owners of lands therein would be promoted thereby, the board of drainage commissioners shall have the power to refund such bonds, or any part thereof, and issue new bonds equal to the amount of bonds outstanding and unpaid, or any part thereof. The new or refunding bonds shall bear a rate of interest not exceeding six percent (6%) payable semiannually, and shall be divided into such annual installments not exceeding ten percent (10%) and not less than five percent (5%) of the outstanding bonds so refunded. The new assessments shall be levied and collected with which to pay the principal and interest on the bonds in the manner provided by law. The first installment of principal on the bonds so refunded may be made payable at a certain date in the future not exceeding six years from the date of the refunding bonds, and in the meantime annual assessments shall be levied and collected for the payment of the interest.

History

(1917, c. 152, s. 14; C.S., s. 5358.)

§ 156-102. Drainage bonds received as deposits.

The State Treasurer is authorized to receive drainage bonds issued by drainage districts in North Carolina as deposits from banks, insurance companies, and other corporations required by law to make deposits with the State Treasurer: Provided, that the Attorney General shall have approved the form of such bonds.

History

(1917, c. 152, s. 7; C.S., s. 5359.)

Local Modification. - Edgecombe, Pitt: 1937, c. 334.

§ 156-103. Assessment rolls prepared.

The board of drainage commissioners shall immediately prepare the assessment rolls or drainage tax lists, giving thereon the names of the owners of land in the district and a brief description of the several tracts of land assessed and the amount of assessment against each tract of land. The first of these assessment rolls shall be due and payable on the first Monday in September following the date of such bonds, and shall provide funds sufficient for the payment of interest on such bonds for one year. The second assessment roll shall make like provision for the payment of the interest for one year. Annual assessment rolls shall thereafter provide funds sufficient to meet the interest for one year on the issue of bonds outstanding. During the year previous to maturity of any annual installment due upon the principal of said bonds there shall be an assessment roll sufficient to provide funds for the payment of both the interest for one year and for the payment of the annual installment due upon the principal of the bonds. Such annual assessments shall be made from year to year to provide funds to meet the interest for one year and the annual installment of the principal due upon the bonds outstanding, until the whole principal due upon the outstanding bonds and the interest thereon shall be fully paid. In making up such assessment rolls there shall be included ten percent (10%) additional as provided in G.S. 156-98. Each of the assessment rolls shall specify the time when collectible and be numbered in their order, and the amounts assessed against the several tracts of land shall be in accordance with the benefits received, as shown by the classification and ratio of assessments made by the viewers. These assessment rolls shall be signed by the chairman of the board of drainage commissioners and by the secretary of the board. There shall be four copies of each of the assessment rolls, one of which shall be filed with the drainage record, one shall be filed with the chairman of the board of drainage commissioners, who shall carefully preserve the same, one shall be preserved by the clerk of the court, without change or mutilation, for the purposes of reference or comparison, and one shall be delivered to the sheriff, or other county tax collector, after the clerk of the superior court has appended thereto an order directing the collection of such assessments, and the assessments, shall thereupon have the force and effect of a judgment as in the case of State and county taxes. If the drainage commission which has assessed the lands of a drainage district prior to March 11, 1919, shall file the aforesaid four copies of assessment rolls within six months from April 1, 1919, the filing of such assessment rolls shall have the same legal effect as if filed strictly in accordance with this section immediately after the preparation of such assessment rolls. The State having authorized the creation of drainage districts and having delegated thereto the power to levy a valid tax in furtherance of the public purposes thereof, it is hereby declared that drainage districts heretofore or hereafter organized under existing law or any subsequent amendments thereto are created for a public use and are political subdivisions of the State.

History

(1911, c. 67, s. 12; 1917, c. 152, s. 9; 1919, c. 282, s. 1; C.S., s. 5360; 1921, c. 7; 1923, c. 217, s. 8.)

Cross References. - As to application of this section, see G.S. 156-104.

CASE NOTES

The assessment arises upon completion of the assessment rolls. Nesbit v. Kafer, 222 N.C. 48, 21 S.E.2d 903 (1942).

Cited in Board of Comm'rs v. Gaines, 221 N.C. 324, 20 S.E.2d 377 (1942); Robeson County Drainage Dist. No. 4 v. Bullard, 229 N.C. 633, 50 S.E.2d 742 (1948).


§ 156-104. Application of amendatory provisions of certain sections; amendment or reformation of proceedings.

All the provisions of Chapter 217 of the Public Laws of 1923 amendatory of G.S. 156-71, 156-75, 156-83, 156-94, 156-97, 156-98, 156-99 and 156-103 shall apply to all drainage districts which shall hereafter be organized, and also to all districts where proceedings for the organization thereof have been instituted and are now pending and where the bonds have not been actually issued, sold, and delivered to the purchaser thereof. If it shall be necessary to amend or reform any of the pleadings or orders made by the court or any action taken by the board of drainage commissioners in any drainage proceedings instituted and pending before March 6, 1923, full authority is granted to make any such amendments, to the end that the said drainage proceedings shall conform with the provisions hereof.

History

(1923, c. 217, s. 9; C.S., s. 5360(a).)

Local Modification. - Hyde: 1923, c. 217, s. 10; C.S., s. 5360(a).

§ 156-105. Assessment lien; collection; sale of land.

The assessments shall constitute a first and paramount lien, second only to State and county taxes, upon the lands assessed for the payment of the bonds and interest thereon as they become due, and shall be collected in the same manner and by the same officers as the State and county taxes are collected. The assessments shall be due and payable on the first Monday in September each year, and if the same shall not be paid in full by the thirty-first day of December following, it shall be the duty of the sheriff or tax collector to sell the lands so delinquent. The sale of lands for failure to pay such assessments shall be made at the courthouse door of the county in which the lands are situated, between the hours of 10 o'clock in the forenoon and four o'clock in the afternoon of any date except Sunday or another legal holiday when the courthouse is closed for transactions, which may be designated by the board of drainage commissioners. After any such sale date has been designated by the board of drainage commissioners, if for any necessary cause the sale cannot be made on that date, the sale may be continued from day to day for not exceeding four days, or the lands may be readvertised and sold on any day which the board of drainage commissioners may or shall designate during the same hours and without any order being obtained therefor during the same calendar year. Nothing in this section shall be construed to require any order from any court for any sale or resale held hereunder. The existing general tax law in force when sales are made for delinquent assessments shall have application in redeeming lands so sold; and in all other respects, except as herein or otherwise modified or amended, the existing law as to the collection of State and county taxes shall apply to the collection of such drainage assessments. No bid at any sale shall be received unless sufficient in amount to discharge all the drainage assessments and other charges due by the delinquent lands or owner thereof, together with all costs and expenses of sale. If no sufficient bid be received, the board of drainage commissioners of the district shall be deemed the purchaser in its corporate capacity at a sum sufficient to pay all assessments which are due and costs as above stated, and shall be entitled to receive a certificate of purchase and deed in the manner provided by law for purchasers at tax sales. The board of drainage commissioners shall only be required to pay to the sheriff the costs and expenses of sale before receiving a certificate of purchase. The board of drainage commissioners of the district in their corporate capacity shall be in like position and have the same rights and be subject to the same duties as the purchaser of lands at any tax sale under the general law. If the board of drainage commissioners shall have been the purchaser of lands so sold, the amount paid in redemption by the owner, or any person having an estate therein or lien thereon, shall include the sum bid therefor plus the penalty. The board of drainage commissioners shall pay to the sheriff or tax collector the amount representing their bid at the sale of said lands before they shall be entitled to receive a deed therefor, which the sheriff shall pay to the treasurer of the drainage district in the same manner as other funds received by him. The board of drainage commissioners, after acquiring a deed for said lands, may hold the same as an asset of the district, and shall be liable for the payment of all drainage assessments and State and county taxes accruing after the sale at which the district was a bidder, and in all respects be deemed the owner of said lands and subject to the same privileges and liabilities as any other landowner, including the right to convey the said lands for a consideration and pay the proceeds of said sale to the treasurer of the district, which may be distributed by the drainage commissioners for the benefit of the district in the same manner as other district funds.

If any sheriff or tax collector failed for any reason to collect drainage assessments upon lands in any drainage districts due in 1917, or any subsequent years, and further failed to make valid sales of the lands so delinquent in the payment of such assessments, then and in such event the existing sheriff or tax collector is hereby authorized and directed to proceed to collect such unpaid drainage assessments, with interest thereon from the dates when such assessments respectively became due, and in default of payment being made he is further authorized to make sales of such lands as may be in default at any time hereafter, at the times and in the manner authorized by law as amended herein; and the purchaser at said sales shall acquire title to such lands in the manner provided by law. If the sheriff or tax collector in office at the time such assessments were in default has since died or gone out of office, the powers herein given shall be exercised by the existing sheriff or tax collector.

The 1931 amendment to this section shall have the same force and effect from and after April 13, 1931, as if it had been ratified and enacted prior to the first day of January, 1929, and no sale of drainage lands held under the provisions of section 5361 shall be deemed or declared void by reason of the fact that they may not have been held on the day specified in section 5361 of the Consolidated Statutes prior to this amendment.

History

(1911, c. 67, s. 12; 1917, c. 152, s. 9; C.S., s. 5361; Pub. Loc. 1923, c. 88, ss. 3, 4, 5; 1931, c. 273; 2003-337, s. 12.)

Local Modification. - Franklin, Hyde, Nash, Wilson: Pub. Loc. 1923, c. 88.

CASE NOTES

Due Process of Law Not Denied. - The statute under which a drainage district is formed does not deny the district due process of law by providing for the collection and security of the assessments as other county taxes are collected, kept, etc. Commissioners of Robeson County v. Lewis, 174 N.C. 528, 94 S.E. 8 (1917).

Assessments upon lands in a drainage district are a lien in rem on the lands of the owner for the payment of the bonds issued by the district in accordance with the statute, the district being a geographical quasi-public corporation, and the benefits annually accruing to the advantage of successive owners. Such assessments are due and payable at stated intervals. Pate v. Banks, 178 N.C. 139, 100 S.E. 251 (1919).

The legislature intended that the assessments as shown on the assessment rolls which the board of drainage commissioners is required to prepare immediately upon the sale of the bonds become liens as they become due, affecting all of the lands on the assessment rolls, which relate to the entire district for the entire period over which the payment of the assessments is spread. Nesbit v. Kafer, 222 N.C. 48, 21 S.E.2d 903 (1942).

Lien Not a Debt of the Landowner. - The lien of the charges for drainage is not a debt of the owner of the land therein, but is a charge solely upon the land, and accrues, pari passu, with the benefits as they shall accrue thereafter. They are not liens until they successfully fall due, and are presumed to be paid out of the increased productiveness and other benefits as they accrue from time to time. These assessments are to be levied from time to time to pay, not the indebtedness of the owner of any tract, but to pay the bonded indebtedness of the district, in that they are exactly like bonds issued by the township, county or State for public benefits and which become liens on property in futuro only to the extent of the taxes falling due each year to pay the interest, and such part of the principal as may become due. One who purchases land in a township, county or State cannot complain that these successive tax liens will, from time to time, be collectible out of his realty. Whether he knew of the existence of such indebtedness or not makes no difference. They are not encumbrances within the sense of the warranty clause of a deed. The assessment in a drainage district to take the water off the land is simply an annual tax for that purpose. Pate v. Banks, 178 N.C. 139, 100 S.E. 251 (1919).

Liens Do Not Fall Within a Warranty Against Encumbrances Until Due and Payable. - Liens on lands within a statutory drainage district for assessment charges for its maintenance and upkeep do not fall within a warranty or covenant against encumbrances contained in a deed until they are due and payable. Branch v. Saunders, 195 N.C. 176, 141 S.E. 583 (1928).

Priority of Assessments over Mortgage. - The assessments on lands for a bond issue have a prior lien to a mortgage executed thereon prior to the formation of said district. Drainage Comm'rs of Washington County Dist. No. 4 v. Eastern Home & Farm Ass'n, 165 N.C. 697, 81 S.E. 947 (1914).

Failure to Levy Annual Assessments No Bar to Later Collection. - This section provides that assessments shall be collected "in the same manner and by the same officers as the state and county taxes are collected," and G.S. 105-394(3) provides that "[t]he failure to list, appraise, or assess any property for taxation or to levy any tax within the time prescribed by law" is an immaterial irregularity that does not affect the validity of the assessment; therefore, plaintiff drainage district's failure to levy annual assessments for 1974 and 1983 by the first Monday in September of those years did not bar later collection of the assessments. Northampton County Drainage Dist. No. 1 v. Bailey, 92 N.C. App. 68, 373 S.E.2d 560 (1988), rev'd in part and aff'd in part, 326 N.C. 742, 392 S.E.2d 352 (1990).

The drainage assessments collected are public funds although they are to be used solely for the purpose of paying principal and interest on drainage bonds. Wilkinson v. Boomer, 217 N.C. 217, 7 S.E.2d 491 (1940).

Assessments are public money of county. - This and the following sections impress the moneys derived from the assessments as public money of the county, to be kept in the depository designated under the statute for such funds, although the funds in question are devoted to a particular or defined use. Commissioners of Robeson County v. Lewis, 174 N.C. 528, 94 S.E. 8 (1917).

Remedy for Collection Is Adequate. - It is provided by this section that drainage assessments shall be collected in the same manner as taxes are collected. Such liens may be collected by sale of the land by the sheriff, with issue of certificates of sale, with right in the holder of the certificates to foreclose in due time, or by foreclosure of the lien in a suit instituted by the district or the holder of a tax deed or certificate, in the nature of an action to foreclose a mortgage. This remedy for the collection of such assessments is adequate. Wilkinson v. Boomer, 217 N.C. 217, 7 S.E.2d 491 (1940).

A receiver cannot intervene in a bank's action against the board on the ground that he has the right under this section to collect payments. Board of Drainage Comm'rs v. Lafayette Southside Bank, 27 F.2d 286 (4th Cir. 1928).

§ 156-106. Assessment not collectible out of other property of delinquent.

Only the land assessed in the drainage proceeding shall be liable for the drainage tax or assessment, and no other property of the landowner shall or may be sold for said drainage tax or assessment: Provided, that this section shall not apply to any drainage bond sold and delivered prior to March 7, 1927, or to any litigation pending at that time.

History

(1919, c. 282, s. 2; C.S., s. 5362; 1927, c. 139.)

Local Modification. - Cumberland, Robeson: 1927, c. 139, s. 11/2.

§ 156-107. Sheriff in good faith selling property for assessment not liable for irregularity.

The sheriff who executes upon property for the collection of drainage assessments under the provisions of this Article shall not be liable either civilly or criminally if he shall sell such property in good faith, even though such sale is irregular or for any cause illegal.

History

(1919, c. 282, s. 4; C.S., s. 5363.)

§ 156-108. Receipt books prepared.

The clerk of the superior court in each county where one or more drainage districts have been established shall be required to have prepared annually during the month of August a form of receipt, with appropriate stubs attached and properly bound, for the drainage assessments due on each tract of land as recited in the assessment rolls. This bound book of tax receipts or bills shall be indorsed "Drainage assessments of the (here give the name of the district) for the county of ____________, delivered to the sheriff or tax collector as of the first Monday in September, ________, for collection as required by law," and the same indorsement shall be printed at the top of each tax bill or blank receipt. Each tax bill or blank receipt shall contain a blank space for the name of the owner of the property, the amount of the annual drainage tax, the amount of maintenance tax, if any, and a receipt at the bottom of the same, followed by a blank line for the signature of the tax collector. This bound book of tax bills or receipts, with the blanks duly filled in, shall be delivered to the sheriff or tax collector on the first Monday of September of each year. The necessary cost of printing and binding such book of tax bills or receipts and the filling in of the same shall be a proper charge against such drainage district and shall be paid by the board of drainage commissioners.

History

(1917, c. 152, s. 9; 1919, c. 208, s. 2; C.S., s. 5364; 1999-456, s. 59.)

CASE NOTES

Cited in Nesbit v. Kafer, 222 N.C. 48, 21 S.E.2d 903 (1942).


§ 156-109. Receipt books where lands in two or more counties.

Where any drainage district which has been established contains lands located in a county or counties other than the county in which the district was established, the clerk of the superior court of the county in which the district was established shall have prepared annually during the month of August a form of tax bills or receipts, with appropriate stubs attached, covering all the lands in the drainage district located in such other county or counties, and in the form herein provided for the county in which the district has been established, and have the same substantially bound in book form. He shall also fill in the blanks of such tax receipts ready for the signature of the collector. On a page in such bound book after the tax bills or receipts there shall be appended an order directed to the sheriff or tax collector in the county in which such lands are located, which shall be in substantially the following form: State of North Carolina - County of ____________. The Sheriff or Tax Collector of ______________ County: This is to certify that the foregoing tax bills or blank receipts embrace the drainage assessments made on certain lands in the county of __________________, which are located in and are a part of (here insert the name of the drainage district), which district was established in the county of __________________.These assessments are due on the first Monday of September, ________, and must be paid and collected within the time required by law. You will make monthly settlements of your collections with the treasurer of __________________ County, being the county in which the district was established, and in all other respects you will discharge your duties as sheriff or tax collector as required by law. In witness whereof, I have hereunto set my hand and official seal, this ________ day of ____________, ________.

___________________________________________________________________, Clerk Superior Court ____________ County.

Thereupon such drainage assessments in such county shall have the force and effect of a judgment upon the lands so assessed, as in the case of State and county taxes, and shall in all other respects be as valid assessments as those levied upon lands in the county in which the district was established. The auditor for drainage districts herein authorized shall also examine the records and accounts of the sheriff of such county. In the establishment and administration of the drainage districts the clerk of the superior court, the treasurer, and the chairman of the board of drainage commissioners shall have jurisdiction over the lands and the collection of drainage assessments in the county or counties other than the county in which the district was established to the same extent as in the county where such district was established: Provided, that in those counties which do not have a county treasurer, then the auditor provided for in this Subchapter shall perform the duties required by this section for the county treasurer.

History

(1917, c. 152, s. 11; C.S., s. 5365; 1963, c. 767, s. 4; 1999-456, s. 59.)

Editor's Note. - Section 156-81.1, as enacted by Session Laws 1963, c. 767, s. 4, provided that all references in Subchapter III of this Chapter to "treasurer", "county treasurer" or "county auditor" were amended to refer exclusively to the treasurer appointed as provided in that section. Pursuant to G.S. 156-81.1, the word "county" has been deleted preceding "treasurer" near the beginning of the third sentence of the last paragraph of this section. However, there was no practicable method of changing the proviso at the end of this section to give effect to G.S. 156-81.1.

CASE NOTES

The first sentence of the second paragraph must be read in connection with the provisions of G.S. 156-105 that "the assessments shall constitute a first and paramount lien, second only to State and county taxes upon the lands assessed for the payment of bonds and interest thereon as they become due, and shall be collected in the same manner and by the same officers as State and county taxes are collected;" when so considered, it is clear that this section is not in conflict with G.S. 156-105, but is intended to implement collection of the assessment by the sheriff. Nesbit v. Kafer, 222 N.C. 48, 21 S.E.2d 903 (1942).


§ 156-110. Authority to collect arrears.

If any sheriff or tax collector was authorized to collect drainage assessments in any year prior to 1917, and failed to collect any part of such drainage assessments, and is now out of office, or is still holding the office of sheriff or tax collector, then and in such event such sheriff or tax collector, regardless of the expiration of his term of office, is hereby authorized and directed to proceed to the collection of such unpaid drainage assessments, and in default of payment being made, he is further authorized to make sales of such lands as may be in default at the times and in the manner authorized by law during the year 1917, 1918 or 1919.

History

(1917, c. 152, s. 9; C.S., s. 5366.)

§ 156-111. Sheriff to make monthly settlements; penalty.

The sheriff or tax collector shall be required to make settlements with the treasurer on the first day of each month of all collections of drainage assessments for the preceding month, and to pay over to the treasurer the money so collected, for which the treasurer shall execute an appropriate receipt, to the end that the treasurer may have funds in hand to meet the payments of the interest and principal due upon the outstanding bonds as they mature. If any sheriff or tax collector shall fail to comply with the law for the collection of drainage assessments, or in making payments thereof to the treasurer as provided by law, he shall be guilty of a Class 1 misdemeanor and he shall likewise be liable in a civil action for all damages which may accrue either to the board of drainage commissioners or to the holder of the bonds, to either or both of whom a right of action is given.

History

(1911, c. 67, s. 12; 1917, c. 152, s. 9; C.S., s. 5367; 1963, c. 767, s. 4; 1993, c. 539, s. 1076; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 156-112. Duty of treasurer to make payment; penalty.

It shall be the duty of the treasurer, and without any previous order from the board of drainage commissioners, to provide and pay the installments of interest at the time and place as evidenced by the coupons attached to the bonds, and also to pay the annual installments of the principal due on the bonds at the time and place as evidenced by the bonds. The treasurer shall be guilty of a Class 1 misdemeanor if he shall willfully fail to make prompt payments of the interest and principal of the bonds, and he shall likewise be liable in a civil action for all damages which may accrue either to the board of drainage commissioners or to the holder of such bonds, to either or both of whom a right of action is hereby given.

History

(1911, c. 67, s. 12; C.S., s. 5368; 1963, c. 767, s. 4; 1993, c. 539, s. 1077; 1994, Ex. Sess., c. 24, s. 14(c).)

Cross References. - As to treasurers of drainage districts, see now G.S. 156-81.1

CASE NOTES

Effect of Local Act Abolishing Office of County Treasurer. - Chapter 46, Public-Local Laws 1917, abolished the office of county treasurer of Robeson County and substituted therefor a depositary and financial agent, to perform the duties of treasurer in disbursement of the county funds. The act further provided that the sheriff, as such, or ex officio treasurer, should turn over all moneys of the county to such depositary. It was held that moneys derived from assessments of a drainage district, being county funds, should be deposited, as the statute directed, with the depositary lawfully designated. Commissioners of Robeson County v. Lewis, 174 N.C. 528, 94 S.E. 8 (1917).


§ 156-113. Fees for collection and disbursement.

The fee allowed the sheriff or tax collector for collecting the drainage tax as hereinbefore prescribed shall be two percent (2%) of the amount collected, and the fee allowed the treasurer for disbursing the revenue obtained from the sale of drainage bonds shall be one percent (1%) of the amount disbursed: Provided, that no fee shall be allowed the sheriff or tax collector or treasurer for collecting or receiving the revenue obtained from the sale of the bonds hereinbefore provided for, nor for disbursing the revenue raised or paying off such bonds; provided, that where the sheriff, tax collector or treasurer is on a salary basis, the fees herein set out shall not be charged.

History

(1911, c. 67, s. 13; C.S., s. 5369; 1925, c. 271, s. 1; 1957, c. 562; 1963, c. 767, s. 4.)

Local Modification. - Pitt: 1925, c. 271, s. 2.

CASE NOTES

Construction of Sections in Pari Materia. - The relevant sections of the various statutes upon the subject of the collection of assessments on lands in drainage districts by sheriffs and tax collectors and their compensation therefor, being in pari materia, should be construed together by the courts in ascertaining the legislative intent. Drainage Comm'rs v. Davis of Mattamuskeet Dist., 182 N.C. 140, 108 S.E. 506 (1921).

Sheriff's Compensation Restricted. - The bringing forward of s. 13, c. 67, Public Laws 1911, in this section, providing that 2 percent shall be allowed sheriffs "for collecting the drainage assessments as hereinbefore prescribed," is a legislative construction of the prior law, and was intended to restrict the compensation of the sheriff to 2 percent of the amount of the assessments in drainage districts collected by him, and not to allow him a commission of 5 percent as in case of taxes collected for general governmental purposes. Drainage Comm'rs v. Davis of Mattamuskeet Dist., 182 N.C. 140, 108 S.E. 506 (1921).

Compensation of Treasurer. - This section, dealing with the compensation to be allowed the county treasurer (now the treasurer of the drainage district) for disbursing the revenue obtained from the sale of the bonds of a drainage district provides but one compensation for all services. Board of Drainage Comm'rs v. Credle, 182 N.C. 442, 109 S.E. 88 (1921).


§ 156-114. Conveyance of land; change in assessment roll; procedure.

  1. Status of Land Fixed. - The boundaries of lands as surveyed and mapped, the ownership thereof, and the classification and assessment thereof as appears in the final report and map and upon the assessment roll, shall be and remain as of the time when the district was established and the final report of the board of viewers was approved by the court. No conveyance or devise of land or devolution by inheritance after the petition has been filed or the owner thereof has been served with the original summons, either by personal service or by publication, shall affect the status or liability of such land as a part of such drainage district, except as herein provided.
  2. Conveyance before Final Report. - If the owner of any lands included in such district shall, after the filing of the petition, and after being served with the original summons and before the approval of the final report, convey the whole or any part of such lands, or the title thereto shall be otherwise changed, then and in such event the grantor and grantee or new owner, or either, may file a petition in an ancillary proceeding before the clerk of the superior court setting forth the facts, with a description of the lands conveyed either in part or the entire body of land, together with a description of the land excepted and not conveyed. If the grantor or grantee or new owner, in whole or in part, file such petition, the other not so joining shall be served with notice of same. The clerk may require the petitioner to attach to the petition a map showing the boundaries of the entire body of land as it appears in the record of the proceedings, and also showing the part conveyed. If the ownership of such land has been changed by devise or inheritance, or any joint ownership has been changed by partition, such new owner may file a petition as herein provided. Such petition shall conclude with a prayer that the grantee or new owner be made a party to the proceeding. The court after a hearing may make the grantee or new owner a party to the drainage proceeding and shall certify to the engineer and viewers a description of the land so conveyed or held by the new owner, with directions to verify the boundaries and to classify the land to the same extent as if the grantee was the original party. Any part of such lands not so conveyed shall be and remain a part of the district.
  3. Conveyance after District Established. - After the district shall be established, the lands classified, the final report approved, and the assessment roll filed, no conveyance of any land in the district shall affect or change the existing status or liability of such land as to assessment charges or otherwise, except in the manner herein defined. When the title and ownership of any tract of land embraced in the district have been changed or vested in others by grant, devise, or inheritance, or by partition between joint owners, subsequent to the establishment of the district, the assessment roll may be amended in the following manner: The grantor and grantee, or the new owners, may file a petition with the chairman of the board of drainage commissioners alleging that the ownership of the land has changed, and the manner thereof, in whole or in part. If the whole body of land as appears in the final report or on the assessment roll has changed ownership, a general description consistent with such final report and map shall be sufficient. If the ownership of the body of land has changed only as to part thereof, the petition shall contain a description of the part thereof claimed by the new owners, and the number of acres and the classifications, or the several classes if it be in more than one class, and also a description of that part of the land the title to which remains in the original owner, with the number of acres and with the classification and the several classes if it contains more than one class of land. The petition shall so describe the land and the number of acres in each class as to that part of which the ownership has changed as to maintain the number of acres originally assessed, and the class or classes in which the same has been assessed, and the chairman of the board of drainage commissioners may require the petitioners to have the lands surveyed, and submit a map if the same shall be necessary.
  4. Duty of Chairman of Drainage Commissioners and Clerk. - The chairman of the board of drainage commissioners shall present this petition to the clerk of the superior court at any time thereafter, not later than the first Monday in July following. It shall be the duty of the clerk to examine and verify the facts set forth in the petition, and particularly to determine if the number of acres assessed and the classes thereof against the new owners added to the number of acres and the classes assessed against that part of the land, the title to which has not changed, shall equal the total number of acres and the classes so assessed as appear against such entire body of land in the final report and assessment roll. If the clerk shall be so satisfied, he shall enter an order or decree changing the original assessment roll, or the assessment roll as theretofore amended, by adding the name of the new owner with the number of acres assessed in each class, and by amending the number of acres assessed and the classes thereof against the original owner as appears on the original assessment roll or assessment roll as theretofore amended. It shall be the duty of the clerk after such order to make such changes in the assessment roll. It shall be the duty of the clerk of the superior court in making changes in the original assessment roll from time to time to observe and maintain the total number of acres in each class, to the end that the revenue produced from the annual assessment shall not be thereby diminished. The chairman of the board of drainage commissioners, instead of presenting to the clerk of the court each petition of landowners separately, may combine a number of petitions and present the same to the court at one and the same time. The first Monday in July in each year is hereby set apart as a special day on which petitions for changing the assessment roll may be submitted, at which time the clerk shall hear all petitions not theretofore submitted.
  5. Failure of Chairman of Board to Act. - If the chairman of the board of drainage commissioners shall fail to act when any petition shall be submitted to him as herein provided, or the chairman or any member of the board shall fail to discharge any duty imposed by this section or any other provision of the general drainage law, it is hereby made the duty of the clerk of the superior court, either independently or upon the request of any landowner in the district, to cite such chairman or member to appear before him upon a certain day and show cause why he should not be removed from office, and unless good cause be shown, it shall be the duty of the clerk to remove the chairman or any member of the board of drainage commissioners and to certify his action, to the end that another member may be elected according to law. If the failure of the chairman or any member of the board of drainage commissioners to discharge such duty shall be willful, he shall be guilty of a Class 1 misdemeanor.
  6. When Owner May File Petition with Clerk. - If the grantor and grantee, or all those claiming to have acquired title to any body of land on the assessment roll and whose assessment will be affected, cannot agree upon joinder in a petition to the chairman of the board of drainage commissioners, or if the said chairman fails within a reasonable time to discharge his duty by presenting the petition to the court, then either party interested in the tract of land as it appears on the assessment roll may file a petition with the clerk of the superior court setting forth the facts as to the change in ownership and title of such land, with the description of the entire tract of land and the number of acres in each class, together with a description of that part of the land as to which the ownership has changed, with the number of acres in each class, and pray the court to order that the assessment roll be amended in accordance with the title and interest of the several owners. At the time of filing the petition a summons shall issue to the other parties interested in the tract of land to show cause, on a day certain, why the prayer of the petition should not be granted. Upon the return day the clerk of the court shall hear all the evidence, find the facts, and enter up a judgment directing the appropriate amendment to the assessment roll. It shall be the duty of the clerk to amend the assessment roll in accordance with his judgment.
  7. Effect of Change in Assessment Roll. - No judgment or amendment of the assessment roll shall be valid unless the number of acres and the classes assessed against the original and new owners shall equal the area and classification as contained in the tract of land as it appears on the original assessment roll. This petition may be presented to the court at any time, but the first Monday in July in each year is hereby designated as the day upon which all petitions for amendments to the assessment roll may be submitted. Any amendments to the assessment roll ordered after the last day of August in each year shall not become effective until the first day of September the following year, and the assessment roll as it appears on the first day of September of each year shall constitute the assessment roll to be delivered to the sheriff on the first Monday in September, and he shall collect the drainage assessments as they appear thereon without regard to any changes in title or ownership or any changes in the assessment roll made by the court after the thirty-first day of August. All amendments sought to be made to the assessment roll shall have reference to the assessment roll as it appears at the time the amendment is sought, which shall be either the original assessment roll or as amended; but it shall be the duty of the clerk of the superior court to examine frequently the assessment roll as amended, and before the same shall be further amended, and make certain that the aggregate number of acres in each class as appeared on the original assessment roll shall not be reduced, nor the aggregate annual assessments reduced. Any amendments ordered shall be made on the assessment roll and become due in the following September, and on all subsequent assessment rolls which have not become due or collectible.
  8. Clerk to Prepare New Assessment Rolls. - It shall be the duty of the chairman and the secretary of the board of drainage commissioners of the district to render to the clerk of the court any clerical assistance involved in changes in the assessment rolls, but the primary duty and responsibility in making such amendments shall remain with the clerk of the superior court, and he shall be held liable for any error or omission which may work a loss to the district or the bondholders. If such amendments to the assessment rolls shall make necessary the preparation of new assessment rolls, the clerk of the superior court shall be required to prepare such new assessment rolls with the clerical assistance of the chairman and secretary of the board of drainage commissioners, and such new assessment rolls shall be signed by the chairman and secretary of the board of drainage commissioners and by the clerk of the superior court before delivery to the sheriff or tax collector as required upon the original assessment rolls. The original assessment rolls shall be preserved by the clerk of the court among his records for future reference.
  9. Number of Copies. - In the event it shall be necessary to prepare new assessment rolls, the clerk shall prepare four copies, one copy for the drainage record, another for the sheriff or tax collector, another for the chairman of the board of drainage commissioners, and the other for filing and preserving among the records, and which fourth copy shall never be mutilated or interlined, but shall be preserved in its original form for reference. As to all drainage districts heretofore established, the clerk of the court shall prepare an additional copy of all the original assessment rolls for the several years the lands in such districts are assessed and securely preserve the same, at least until all outstanding bonds of the district shall be paid, to the end that they may always be accessible for reference and comparison. It shall not be necessary hereafter to deliver to the sheriff or tax collector a copy of the assessment roll for the current year in which assessments are due and payable, but the copy provided for him may remain among the records of the clerk of the court for safekeeping and reference by him.
  10. Costs Determined. - As compensation to the clerk of the court for the performance of duties imposed herein, he shall be paid such sum by the board of drainage commissioners of such drainage district as they may deem fair and adequate, and the same is hereby declared a proper charge against said district, but no additional compensation shall be paid to the clerk in those counties where he receives a salary in lieu of fees. Any costs which may accrue in amendments to the assessment rolls shall be adjudged against the parties in interest, in the discretion of the clerk, and such costs shall be paid before the amendment shall become effective. As to all petitions which shall be filed and submitted to the court on the first Monday in July, no costs shall be paid or adjudged against any party in those counties where the clerk and sheriff receive a salary in lieu of fees.
  11. Chairman Represents Board. - As to all petitions filed with the chairman of the board of drainage commissioners, or as to the discharge of any duty by the chairman required of him under the general drainage law, he shall be presumed to act for the board, and the chairman shall do all things necessary to protect and maintain the interests of the drainage district. If the chairman shall be or become a landowner in the drainage district and may desire an amendment to the assessment rolls, he may file his petition before any other member of the board, or file the same directly with the clerk of the superior court.
  12. Application of Section. - The provisions of this section shall apply to landowners in districts heretofore established and to drainage proceedings heretofore instituted to the same extent as to drainage proceedings hereafter instituted and established.

History

(1917, c. 152, s. 4; 1919, c. 208, s. 1; C.S., s. 5370; 1993, c. 539, s. 1078; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 156-115. Warranty in deed runs to purchaser who pays assessment.

Where the land assessed by drainage commissioners under the provisions of this Article has been purchased since the making of the assessment by a purchaser for value without notice under a deed of general warranty, and said purchaser pays to the sheriff the amount of said drainage assessment, which is a lien on the land purchased, then such purchaser who pays the said drainage assessment shall have a right of action against the warrantor of his title under the covenant of general warranty contained in his deed for the recovery of the amount paid.

History

(1919, c. 282, s. 3; C.S., s. 5371.)

CASE NOTES

Section Does Not Refer to Future Assessments. - An assessment matured and due, under the decisions, would constitute "a lien on the land purchased," but this section does not refer to future assessments not due at the time the land was purchased. Branch v. Saunders, 195 N.C. 176, 141 S.E. 583 (1928).

Liens Not Within Warranty Against Encumbrances Until Due and Payable. - Liens on lands within a statutory drainage district for assessment charges for its maintenance and upkeep do not fall within a warranty or covenant against encumbrances contained in a deed until they are due and payable. Branch v. Saunders, 195 N.C. 176, 141 S.E. 583 (1928).


§ 156-116. Modification of assessments.

  1. Relevy. - Where the court has confirmed an assessment for the construction of any public levee, ditch, or drain, and such assessment has been modified by the court of superior jurisdiction, but for some unforeseen cause it cannot be collected, the board of drainage commissioners shall have power to change or modify the assessment as originally confirmed to conform to the judgment of the superior court and to cover any deficit that may have been caused by the order of court or unforeseen occurrence. The relevy shall be made for the additional sum required, in the same ratio on the lands benefited as the original assessment was made.
  2. Upon Sale of Land for Assessments. - If any person, or any number of persons, claiming to have title to any tract or tracts of land subject to assessment or drainage tax shall fail to pay any annual assessment levied against such lands, and the sheriff or tax collector shall be compelled to sell such lands under the law for the purpose of making such collection, the net proceeds of such sale shall be paid to the treasurer, to be held by him and disbursed for the purpose of paying the current assessment and future annual assessments so far as the proceeds may be sufficient. When the fund in the custody of the treasurer shall be exhausted in the payment of annual assessments against such lands, or there shall not be a sufficient sum to pay the next annual assessment, the treasurer shall immediately give written notice to that effect to the chairman of the board of drainage commissioners of the district, and also to the clerk of the superior court, whereupon the board of drainage commissioners shall institute an investigation of such tract or tracts of land to determine the market value, and if they shall find that the market value is not equal to all the future annual assessments to cover its share of installments of principal and interest on the outstanding bonds, they shall proceed, with the approval of the clerk of the superior court, to make new reassessment rolls on all the remaining lands in the district and increase the sum in sufficient sums to equal the deficit thereby created and such new assessment rolls shall constitute the future assessment rolls until changed according to law, and shall be certified to the tax collector as herein provided in lieu of the former assessment rolls. However, the tract or tracts of land which have been so sold by the tax collector shall continue on the assessment roll in the name of the new owner, but reassessed upon the new basis, and the drainage tax collected at the same time and in the same manner as other lands as long as such lands may have sufficient market value out of which to collect the annual drainage tax, and when such lands shall cease to have such value, or shall be abandoned by the person claiming title thereto, the drainage commissioners may omit the same from the assessment roll with the approval of the clerk of the superior court, but such lands may in the same manner at any time in the future be restored to the assessment rolls.
  3. Surplus Funds. - If the funds in the hands of the treasurer at any time, arising under this section or in any other manner, shall be greater than is necessary to pay the annual installments of principal and interest, or the annual cost of maintenance of the drainage works, or both, such surplus shall be held by the treasurer for future disbursement for other purposes as herein provided or subject to the order of the board of drainage commissioners.
  4. Insufficient Funds. - If there shall be any impairment or destruction of the drainage works by any unforeseen cause or occurrence not anticipated, during the period of construction by the contractor, the contractor shall nevertheless repair and complete the works according to the contract and specifications and shall be liable therefor and also his sureties on his bond; but if the contractor shall make default and if there shall be a failure to collect all resulting damages from such contractor and the sureties upon his bond, and it shall thereby be necessary to raise a greater sum of money to complete the drainage works in accordance with the plans, or if for any other unavoidable cause it shall be necessary to raise a greater sum to complete such drainage works, the board of drainage commissioners, having first obtained the approval of the clerk of the superior court, shall prepare new assessment rolls upon all the lands in the district upon the original basis of classification of benefits and increase the same in sufficient sums to equal the deficit thereby created, and the same shall constitute the new assessment rolls until changed according to law, and shall be certified to the tax collector as herein provided.
  5. Additional Bonds Issued. - If for any of the causes hereinbefore recited in this section, or for any other cause, a sum of money greater than the proceeds of sale of the drainage bonds shall become necessary to complete the drainage system, and the board of drainage commissioners shall determine that the amount to be raised is greater than can be realized from the collection of one annual assessment upon the lands in the district without imposing an undue burden upon the lands, or if it is advisable or necessary to raise the money more expeditiously, then and under such conditions additional bonds may be issued in such aggregate sum as may be necessary.
  6. Manner of Issue. - The proceedings for the issue of such additional bonds shall be substantially as follows: The board of drainage commissioners shall file their petition with the clerk of the superior court, setting forth all the facts which require the expenditure of more money and the issue of additional bonds to complete the drainage system, which shall be accompanied by the recommendation of the drainage engineer who was one of the original viewers, or some other expert drainage engineer selected by the drainage commissioners; whereupon the court shall issue a notice to all the owners of land within the district reciting the substance of the petition and directing each to appear before the court on a day certain, not less than 20 days after the service upon all the parties, and to show cause, if any they have, why the additional bonds should not be authorized, which notice shall be served personally on each such landowner by reading the same, and by leaving a copy, and if the same cannot be personally served, then it shall be served in the manner authorized by law. Any landowner may file an answer denying any material allegation in the petition or setting forth any valid objection to same before the return day thereof.

Upon the day when the notice is returnable, or on such day as to which the same may have been continued, the court shall proceed to hear the petition and answers. If the court shall find that the allegations of the petition are true, and that the issue of additional bonds is advisable or necessary, the court shall make an appropriate order authorizing and directing the issue of such additional bonds, fixing the amount of such issue, the date of same, the time when the interest and principal shall be payable, and all other matters necessary and appropriate in the premises. Any landowner may appeal from the order of the clerk of the superior court, and on such appeal only the issues raised in the answer shall be considered, and such appeal and the further procedure thereon shall be as prescribed in special proceedings, except as modified by this Subchapter.

After the court shall have ordered the additional issue of bonds, the further procedure as to the assessment rolls, the levying and collecting of the drainage taxes, the disbursement of the revenue therefrom for the payment of such bonds and interest thereon, and all further procedure shall be the same as required for the establishment of drainage districts. The additional bonds issued shall not exceed twenty-five percent (25%) of the total amount originally issued. The additional issue of bonds shall bear six percent (6%) interest per annum and may be made payable in 10 annual installments, or in lesser number of annual installments as nearly equal as may be, as recommended by the board of drainage commissioners and approved by the court.

History

(1909, c. 442, s. 35; 1911, c. 67, s. 15; C.S., s. 5372; 1963, c. 767, s. 4.)

CASE NOTES

The disposition of funds of a drainage district is a matter of statutory regulation in North Carolina. In re Perquimans County Drainage Dist. No. Four, 254 N.C. 155, 118 S.E.2d 431 (1961).

Distribution of Surplus to Owners. - Where a drainage district of a county has assessed the property owners therein for improvements, and after completing the same there is a surplus in the hands of the county treasurer, the board of drainage commissioners, upon the exercise of a sound discretion and in good faith, may determine that the fund on hand is not necessary for further disbursements for the benefit of the district, according to the plan adopted, and may distribute the same proportionately among those assessed in accordance with law, especially when such owners have thereto agreed. Foil v. Board of Drainage Comm'rs, 192 N.C. 652, 135 S.E. 781 (1926).

Transaction Held Invalid Under Public-Local Law. - Where, under the provisions of a public-local law, a drainage district could lend its money derived from its assessments until required for use in payment of the principal and interest on its bonds maturing serially for a period of 10 years, and the statute provided for a depository for these funds, the drainage commissioners could not contract with a different bank to deposit the funds there, in consideration of such bank buying at par a certain issue of such bonds that could not otherwise have been sold, except below par; nor could the transaction, contemplating a period of 10 years, be construed as a loan to the bank as authorized by the statute. Regarded either as a deposit of the funds or a loan thereof, the transaction was void. Commissioners of Robeson County v. Lewis, 174 N.C. 528, 94 S.E. 8 (1917).

Cited in Robeson County Drainage Dist. No. 4 v. Bullard, 229 N.C. 633, 50 S.E.2d 742 (1948).


§ 156-117. Subdistricts formed.

Subdistricts may be formed by owners of land in main districts theretofore established in the manner provided for the organization of main districts. Such subdistricts shall have the right to use the ditches or canals of the main districts for outlets. The formation of subdistricts shall not operate to release the lands in any subdistrict from the payment of any assessment or levy made prior to the formation of such subdistricts, nor from any assessment which may thereafter be made for the completion and maintenance of the canals in main districts, or for the payment of the principal and interest on any indebtedness incurred by the main district, nor shall it give the subdistrict any claim on the funds of such main district for its local use. It shall be the duty of the drainage commissioners of the main district to control all matters pertaining to the main district drainage. Drainage commissioners for the subdistricts shall have authority and control over all matters pertaining to drainage within their respective subdistricts, except such work as belongs exclusively to the main district.

History

(1917, c. 152, s. 8; C.S., s. 5373.)

§§ 156-118 through 156-120: Repealed by Session Laws 1961, c. 614, s. 11.

§ 156-121. Redress to dissatisfied landowners.

Anyone owning land which has been reclassified by the board of viewers who is dissatisfied with their classification shall have the same redress as has heretofore been provided where divisions of classification have been made by a petition to the clerk or otherwise.

History

(1923, c. 231, s. 4; C.S., s. 5373(d).)

§ 156-122. Increase to extinguish debt.

If in the opinion of the board of drainage commissioners it would help the sale of the maintenance or improvement bonds, or they would deem it necessary under the provision of G.S. 156-101, they may, with the approval of the clerk of the superior court, add to the amount estimated by the board of viewers a sufficient amount to pay off all outstanding obligations of the district, leaving this their only bond issue.

History

(1923, c. 231, s. 5; C.S., s. 5373(e).)

§ 156-123. Proceedings as for original bond issue.

The compensation of the board of viewers and their assistants, together with all other expenses in connection with this bond issue, shall be paid in the same manner, the duties and power of the clerk, and the duties and power of the board of drainage commissioners, the bonds shall be advertised and sold, divided into such annual installments, bear such a rate of interest, the landowners shall be given the same notices and the same rights to pay cash, the contract shall be let and supervised, and contractor paid the same, as if this was the original bond issue.

History

(1923, c. 231, s. 6; C.S., s. 5373(f).)

CASE NOTES

As to effect of this section and former G.S. 156-118 or G.S. 156-92, see In re Perquimans County Drainage Dist. No. Four, 254 N.C. 155, 118 S.E.2d 431 (1961), decided prior to the repeal of §§ 156-118 through 156-120.


§ 156-124. No drainage assessments for original object may be levied on property when once paid in full.

Whenever any assessment has been made or may be made by any drainage district formed under the laws of the State of North Carolina upon any lands in said district, either for construction or maintenance of its system of drainage or for any other purpose, and the particular assessment made against any particular piece of property has been paid or shall be hereafter paid in full, then and in that event no other or further assessment may be made upon said land for the purpose of providing money for the purpose for which the original assessment was made.

History

(1933, c. 504; 1935, c. 469, s. 5.)

Local Modification. - Mecklenburg: 1933, c. 504; 1935, c. 469.

CASE NOTES

This section does not apply to bonds issued prior to its effective date, or affect the right of the holders of such bonds under prescribed conditions to require the levying and collection of special assessments for the purpose of paying the bonds. Board of Comm'rs v. Gaines, 221 N.C. 324, 20 S.E.2d 377 (1942).

Additional Assessments to Pay Judgment Rendered Prior to Effective Date. - This section does not affect the liability of lands within a drainage district for additional assessments necessary to pay a judgment against the district rendered prior to the effective date of this section for improvements theretofore made by the district. Virginia-Carolina Joint Stock Land Bank v. Watt, 207 N.C. 577, 178 S.E. 228 (1935).


§ 156-124.1: Repealed by Session Laws 1961, c. 614, s. 11.

ARTICLE 9. Adjustment of Delinquent Assessments.

Sec.

§ 156-125. Adjustment by board of commissioners authorized.

The board of commissioners of any drainage district may, in connection with the issuance of bonds for the purpose of refunding outstanding bonds of the district, and in addition to preparing a new assessment roll, for the payment of principal and interest of such refunding bonds, and when the bonds so refunded constitute all of the bonds of the district for which an assessment has been made against property therein, adjust the uncollected delinquent installments of the assessment made upon property in the district, for the payment of principal and interest of the bonds so refunded and for other purposes authorized by law before said bonds were refunded. The adjustment of such delinquent assessments may include reduction of the principal amount of the delinquent installments, not exceeding fifty per centum (50%) thereof, to which reduced installments shall be added interest computed thereon, at a rate not less than the rate of interest of the refunding bonds, from the date of delinquency of said installments to the date of the refunding bonds, and shall include any costs legally incurred for the collection of the same; the date of delinquency shall be deemed to be the first day of December following the date upon which each of said installments became due: Provided, however, all delinquent installments of such assessment shall be adjusted on the same basis and by the same method.

History

(1935, c. 469, s. 1.)

§ 156-126. Extension of adjusted installments.

Upon adjustment of delinquent installments of any assessment as provided herein, the payment of all delinquent installments so adjusted may be extended over a period not exceeding the life of the issue of refunding bonds, but in no event over a period exceeding 20 years. Such extension shall be made by the preparation of assessment rolls, which shall provide for the payment of installments so adjusted in equal annual installments which shall become due annually on September 1, in accordance with the original assessment, and shall bear interest at the rate of four per centum (4%) per annum from December 1 following their due date until paid. Such assessment rolls shall be prepared and filed with the sheriff and the clerk of superior court and receipts shall be prepared and the same shall be collected in the same manner as other assessments of the district.

History

(1935, c. 469, s. 2.)

§ 156-127. Special fund set up; distribution of collections.

The collection of assessments adjusted under this Article and of interest accrued under G.S. 156-126 shall be set aside in a fund and shall be applied as follows: One third of such collections may be used solely for operating and administrative expenses of the district, but the remaining two thirds thereof shall be reserved as additional security for the payment of the refunding bonds, or for the purchase and retirement of such refunding bonds, at prices not exceeding par and accrued interest.

History

(1935, c. 469, s. 3.)

§ 156-128. Approval of adjustments by Local Government Commission.

Any adjustments of delinquent assessments under the provisions of this Article shall be effective only upon approval of the Local Government Commission.

History

(1935, c. 469, s. 4.)

§ 156-129. Amount of assessments limited; reassessments regulated.

The assessments made under this Article shall in no instance, and against no piece of property, be greater in amount than that percent which the percent assessment authorized by this Article bears to the unpaid original assessment upon each piece or tract of property within the district. In no instance, either under this Article or any other law, shall any reassessment be made upon any piece of property for the purpose of providing money for the same purpose for which the original assessment was made, when the original assessment upon said property has been paid, or shall be paid prior to such general reassessment, nor to the extent that the original assessment has been paid.

History

(1935, c. 469, s. 4(b).)

ARTICLE 10. Reports of Officers.

Sec.

§ 156-130. Drainage commissioners to make statements.

It shall be the duty of the commissioners of all drainage districts in the State of North Carolina organized under the provisions of the laws thereof to file with the clerk of the superior court in the county where such district is organized a monthly statement or account during the course of construction of canals for the district, showing the receipts and expenditures of all funds coming into their hands belonging to such drainage district for the period of one month prior to the day on which the same is filed, and also to post a copy of such statement or account at the courthouse door in the county. After the construction of the canals has been concluded and the drainage commissioners have only to maintain the canals, said drainage commissioners shall only be required to file and post the annual statement required in G.S. 156-131. Such statement or account shall be certified by the chairman of the board of commissioners of each drainage district and shall be attested by the secretary thereof, and a copy thereof shall be filed and kept as a part of the minutes of the district.

History

(1917, c. 72, s. 1; C.S., s. 5374; 1927, c. 98, s. 6.)

§ 156-131. Annual report.

At the end of each fiscal year the board of commissioners of all drainage districts in the State of North Carolina shall file with the clerk of the superior court in the county where the district is organized a verified itemized statement of receipts and expenditures of all funds belonging to the district during the fiscal year just closed.

History

(1917, c. 72, s. 2; C.S., s. 5375; 1957, c. 1410, s. 2.)

§ 156-132. Penalty for failure.

Any board of commissioners of any drainage district in the State, and each of the members thereof, which shall fail or refuse to file the statements or accounts, as provided in G.S. 156-130 and 156-131, shall be deemed guilty of a Class 1 misdemeanor.

History

(1917, c. 72, s. 3; C.S., s. 5376; 1957, c. 1410, s. 3; 1993, c. 539, s. 1079; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 156-133. Auditor appointed; duties; compensation.

The clerk of the superior court for the county where the district was organized, shall annually appoint an intelligent and competent person of sufficient experience, as auditor for each drainage district which levies current assessments or which has accumulated funds. The same person may be auditor of more than one drainage district. The auditor shall annually report to the court as to financial affairs of the drainage district. The auditor may prepare all financial reports required by the drainage law to be made to the court by the commissioners of the drainage district. The compensation of the auditor shall be fixed by the said clerk of the superior court, and shall be paid out of the general, or operating, fund of the district.

History

(1917, c. 152, s. 10; 1919, c. 208, s. 3; C.S., s. 5377; 1959, c. 420; 1963, c. 767, s. 11.)

§ 156-134. Duties of the auditor.

The auditor for the drainage district will be required to examine the assessment roll and the records and accounts of the sheriff or tax collector as to the assessment roll which went into his hands on the previous first Monday in September and for all previous years as to which the records and accounts of the sheriff or tax collector have not been audited.

The auditor shall for each of such years make a report as to each drainage district, showing the total amount of drainage assessments due for each year, the amount collected by the sheriff up to the fifteenth day of May of the following year, the names of the owners of land, and a brief description of the lands on which the drainage assessments have not been paid, and the total amount of unpaid drainage assessments, with any further data or information which the auditor may regard as pertinent.

If the lands in the district lie in other counties, the auditor for the county in which the district was established shall also examine the records of the sheriff or tax collector for such other counties.

The auditor shall also examine the books of the treasurer for similar years, and he shall report the amount of drainage assessments paid to the treasurer by the sheriff or tax collector for each year, and the amounts paid out by the treasurer during such years, and for what purposes paid. It shall be the duty of the sheriff and treasurer to permit the auditor to examine their official books and records and to furnish all necessary information, and to assist the auditor in the discharge of his duties.

The auditor shall make a report to the board of county commissioners on or before the first Monday in July following his appointment, and he shall deliver a duplicate of such report to the chairman of the board of drainage commissioners of each drainage district established in the county.

If the sheriff has not collected all of the drainage assessments, or has not paid over all collections to the treasurer, or if the treasurer has not made disbursements of the drainage funds as required by law, or has not in his hands the funds not so disbursed by him, it shall be the duty of the auditor to so report, and to prepare two certified copies of his report, one of which shall be delivered to the judge holding a session of superior court in the county following the first Monday in July, and a copy to the district attorney of the prosecutorial district as defined in G.S. 7A-60 in which the county is located, and it shall be the duty of such district attorney to examine carefully such report and to institute such action, civil or criminal, against the sheriff or tax collector or the treasurer, as the facts contained in the report may justify, or as may be required by law.

History

(1917, c. 152, s. 10; C.S., s. 5378; 1963, c. 767, s. 4; 1973, c. 47, s. 2; c. 108, s. 97; 1987 (Reg. Sess., 1988), c. 1037, s. 124.)

ARTICLE 11. General Provisions.

Sec.

§ 156-135. Construction of drainage law.

The provisions of this Subchapter shall be liberally construed to promote the leveeing, ditching, draining, and reclamation of wet and overflowed lands. The collection of the assessment shall not be defeated, where the proper notices have been given, by reason of any defect 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. If on appeal the court shall deem it just and proper to release any person or to modify his assessment or liability, it shall in no manner affect the rights and legality of any person other than the appellant, and the failure to appeal from the order of the court within the time specified shall be a waiver of any illegality in the proceedings, and the remedies provided for in this Subchapter shall exclude all other remedies.

History

(1909, c. 442, s. 37; C.S., s. 5379.)

CASE NOTES

Liberal Construction of Drainage Laws. - The drainage laws apply to the whole State, and by the express provision of this section they should be liberally construed to promote the leveeing, ditching, draining and reclamation of wet and overflowed lands. Board of Drainage Comm'rs of Parkville Drainage Dist. No. 1 v. Brett Eng'r Co., 165 N.C. 37, 80 S.E. 897 (1914).

Provision that the collection of assessments shall not be defeated, etc., is absolutely necessary if the public are to be protected in their purchase of the bonds put upon the market. It is to be presumed that when the court has rendered such final judgment and the bonds are issued there will be no interference with the collection of the assessments to pay the bondholders, but that all controversies were thrashed out and settled before such final judgment. Banks v. Lane, 171 N.C. 505, 88 S.E. 754 (1916).

Formation of a district is not subject to collateral attack. Board of Drainage Comm'rs v. Lafayette Southside Bank, 27 F.2d 286 (4th Cir. 1928).

§ 156-135.1. Investment of surplus funds.

Any drainage district organized under the provisions of Subchapter III of Chapter 156 of the General Statutes and the governing authority of same is hereby authorized and empowered to invest any surplus funds or any funds not needed for the immediate use of the district in United States bonds or any securities or type of investment in which guardians, executors, administrators and others acting in a fiduciary capacity are authorized to make investments by virtue of Article 1 of Chapter 36 of the General Statutes as amended.

History

(1951, c. 1058, s. 1.)

Editor's Note. - Article 1 of Chapter 36, referred to in this section, was repealed by Session Laws 1977, c. 502, s. 1.

CASE NOTES

Cited in In re Perquimans County Drainage District No. Four, 254 N.C. 155, 118 S.E.2d 431 (1961).


§ 156-136. Removal of officers.

Any engineer, viewer, superintendent of construction or other person appointed under this Chapter may be removed by the court, upon petition, for corruption, negligence of duties, or other good and satisfactory cause shown.

History

(1909, c. 442, s. 38; C.S., s. 5380.)

§ 156-137. Local drainage laws not affected.

This Subchapter shall not repeal or change any local drainage laws already enacted.

History

(1909, c. 442, s. 381/2; C.S., s. 5381.)

CASE NOTES

Where a special local statute for the formation and operation of a drainage district is complete in itself in all its details, a general law expressing itself applicable to all such drainage districts in the State, adding further duties and making the failure of the commissioners to file certain reports an indictable offense, will not be construed to apply unless special reference is made to the special local act. State v. Gettys, 181 N.C. 580, 107 S.E. 307 (1921).


§ 156-138. Punishment for violating law as to drainage districts.

If any person shall violate any of the provisions of law in reference to drainage districts as provided in this Chapter, or shall leave any log, brush, trash, or other thing where it is liable to wash into an adjacent stream and obstruct the flow of water or cut any tree so as to fall in a stream, or place any other obstruction in a stream in a drainage district, he shall be fined not more than fifty dollars ($50.00) or imprisoned not more than 30 days.

History

(1905, c. 541, ss. 7, 9; Rev., s. 3378; C.S., s. 5382.)

§ 156-138.1. Acquisition and disposition of lands; lease to or from federal or State government or agency thereof.

The district may acquire any lands necessary or convenient to enable it to accomplish the purposes for which the district was established. If the lands cannot be acquired by agreement as to the purchase price, then the power of eminent domain is hereby conferred and the lands may be condemned by the procedure set out in G.S. 156-67 and Chapter 40A of the General Statutes. The land so acquired may be used in a manner and for the purposes the commissioners of the district deem best. If, in the opinion of the drainage commission of the district the lands should be sold, leased or rented, the board may do so, subject to the approval of the clerk of the superior court.

The commissioners of the district may, in their discretion, convey or lease to the State or federal governments, or any of their agencies, with or without consideration, any properties, real or personal, belonging to the district, if in their opinion it is necessary to enable the district to receive State or federal funds available to the district. The terms of a conveyance or lease shall be subject to the approval of the clerk of the superior court of the county in which the district was established.

The commissioners of the district may lease from the State or federal governments any real or personal property needed by the district to enable it to efficiently operate and maintain the district for the purposes for which it was established. The terms of a lease shall be subject to the approval of the clerk of the superior court of the county in which the district was established.

History

(1957, c. 539; 2001-487, s. 38(h).)

§ 156-138.2. Meaning of "majority of resident landowners" and "owners of three fifths of land area."

Wherever in this Subchapter reference is made to a "majority of resident landowners" or "owners of three fifths of the land area," such reference shall be deemed to refer only to lands alleged in a petition or adjudged by the court to be benefited by the proposed construction work.

History

(1959, c. 1312, s. 2.)

§ 156-138.3. Notice.

Unless specifically required by the provisions of this Subchapter, it is not necessary to give notice to any landowner of a motion made to, or order rendered by the clerk of the superior court or the judge of the superior court relating to the affairs of the district, financial or otherwise, except when an assessment is proposed to be made upon his land and then such notice shall be given as is required by the provisions of this Subchapter. This provision for notice of assessment shall not apply to assessments for annual maintenance expenses, which are provided for in this Subchapter, and specifically in Article 7A and G.S. 156-92.

History

(1961, c. 614, s. 3.)

CASE NOTES

The land clause of the Constitution of North Carolina is violated insofar as this section dispenses with notice and an opportunity to be heard before imposing maintenance assessments on landowners within the drainage district; the imposition of assessments was not a matter of mathematical computation, but rather, it involved some discretion on the part of the commissioners. Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990).

This section violates the law of the land clause of the Constitution of North Carolina insofar as it dispenses with notice and an opportunity to be heard before imposing maintenance assessments on landowners within the drainage district. Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990).


§ 156-138.4. Procedures to be followed in connection with drainage projects that involve channelization.

Every drainage project that involves channelization shall be subject to the procedures set forth in G.S. 139-47.

History

(1971, c. 1138, s. 4.)

Editor's Note. - Section 139-47, referred to in this section, was repealed by Session Laws 1993, c. 391, s. 31, effective July 19, 1993.

SUBCHAPTER IV. DRAINAGE BY COUNTIES.

ARTICLE 12. Protection of Public Health.

Sec.

§ 156-139. Cleaning and draining of streams, etc., under supervision of governmental agencies.

When the board of commissioners of any county subject to the provisions of this Article shall, by resolution duly adopted, find as facts: (i) that the cleaning out and draining of any portion of any nonnavigable stream, creek or swamp area in such county is necessary and/or desirable to protect and promote the health of the citizens of such county, and (ii) that the agricultural benefits which the lands along such stream or area might receive from such cleaning out and draining would be so negligible as not to justify the levying of any special assessments against such lands on account thereof, it may order, provide for, and accomplish the cleaning out and draining of such portion of such stream, creek or swamp area by, through, and under the supervision and jurisdiction of, the health department, or any sanitary committee, or any drainage commission, or other governmental agency or department of such county.

History

(1943, c. 553, s. 1.)

Legal Periodicals. - For comment on this section and G.S. 156-140 and 156-141, see 21 N.C.L. Rev. 352 (1943).

§ 156-140. Tax levy.

In order to carry out and accomplish the objects and purposes of this Article, the board of commissioners of any such county may annually levy and collect a countywide tax not exceeding two cents (2 › ) upon each one hundred dollars ($100.00) in value of the taxable property in such county.

History

(1943, c. 553, s. 2.)

§ 156-141. Article applicable to certain counties only.

This Article shall apply only to those counties which may have a population in excess of 100,000 persons.

History

(1943, c. 553, s. 3.)