Armstrong v. Beaman

Allen, J.

Tbe initial step in tbe establishment of a drainage district under chapter 442 of tbe Laws of 1909, now sec. 5284, et seq., of tbe Consolidated Statutes, is tbe filing of a petition by a “majority of tbe landowners or the persons owning three-fifths of all tbe lands” in tbe proposed district, and upon tbis preliminary requirement being performed, it is made tbe duty of tbe clerk of tbe Superior Court to issue notice to all other landowners in tbe district, not parties to tbe petition, to appear on a day certain when tbe petition is' beard. These provisions were followed by tbe petitioners, but on tbe return day those opposed to tbe establishment of tbe district offered to show that some of those who signed tbe petition wished to withdraw therefrom, and that if their names were not considered tbe petitioners would not represent a majority of tbe landowners or of persons owning three-fifths of tbe lands.

Tbe clerk held, in substance, that tbe petitioners could not withdraw, and that if tbe fact was established as contended for by tbe defendants, it would not justify a dismissal of tbe proceeding.

Tbe defendants appealed from tbis ruling, which was reversed, arid tbe judge directed that tbe cause be remanded to tbe clerk to tbe end that be might bear tbe evidence, and directed him to dismiss tbe proceeding if found that tbe requisite number of landowners or persons owning land were not in favor of tbe establishment of tbe drainage district, and from tbis order tbe plaintiffs appealed.

Tbe question is decided against tbe petitioners in the case of Shelton v. White, 163 N. C., 90 , in which, upon tbe coming in of tbe final report, it was alleged by certain parties objecting to tbe establishment of the drainage district that a majority of tbe resident landowners and tbe owner of three-fifths of tbe lands objected to tbe formation of the district;- and it was held: “If tbe fact is as alleged, tbe proceeding *13 should be dismissed, notwithstanding that some of the objectors signed the original petition, for upon tbe coming in of tbe final report they may ascertain that the facts are different both as to cost and benefit from what was understood when they signed the petition.”

Surely if persons who have signed the petition may object to the formation of the district after the proceeding has gone through various steps, and expenses have been incurred, even up to the final report, they ought to be permitted to do so in the preliminary stages and before any order has been made, and that is the condition here.

It is said in Central Drainage District, 134 Wis., 130 : “The signer of a petition to establish a drainage ditch has an absolute right to withdraw before the approval of the petition as warranting the appointment of commissioners, and, therefore, till final action upon the commissioners’ report, he has a qualified right to withdraw analogous to that of a complaint, in a civil action in equity to dismiss his bill.”

See, also, Mack v. Polecat Drainage District, 216 Ill., 56 ; S tockard v. Veal, 35 L. R. A. (N. S.), 115.

The order of the judge must be Affirmed.