Stanly v. Watson, 33 N.C. 124, 11 Ired. 124 (1850)

June 1850 · Supreme Court of North Carolina

33 N.C. 124, 11 Ired. 124

EDWARD STANLY & WIFE vs. JOAB WATSON.

An appeal will not lie from the decision of the County Court, upon a petition for draining the petitioner’s lands, through those of others.

The case of Collins v. Haughton, 4 Ire. 420, cited and approved.

Appeal from the Superior Court of Law of Beaufort County, at the Spring Term 1850, his Honor Judge Bailey- presiding.

This is a petition in the County Court against Murray, Watson, and three others, for leave to drain flat lands, belonging to the plaintiffs, by means of a canal through the lands of the defendants to a certain creek, according to the statute. Murray answered, that he had never prevented the plaintiffs from draining through his land, but, on the contrary, upon being informed of their desire to drain, that he had proposed to unite with them in cutting a canal through his land, in such a way as to enable both of them to drain into it: and that, without giving him any answer thereto, or making any other proposal, the plaintiffs filed the petition. Watson put in a similar answer, The other defendants made no answer or opposition to the prayer. The County Court appointed twelve freeholders to go on the premises and examine, whether the canal was necessary, and, if it was, to direct how it should be cut, &c., as prayed for and directed by the statute ; and from the order, the parties, Watson and Murray, appealed. In the Superior Court it was ordered, that the petitioners should have the drain as prayed for, but the same defendants were allowed an appeal therefrom to this Court.

Donnell, for the plaintiffs.

Shaw, for the defendants.

Ruffin, C. J.

There seems to be nothing in the objection raised in the answers ; for at most it ought only to affect the costs, and they are payable by the petitioners at all events under the statute. Indeed, an agreement between the petitioners and two of the defendants, as to direction and size of the canal through their respective tracts of land, would not be material in respect to the proprietors of the other tracts, and the petition would, therefore, be unavoidable. The statements in the petition are, probably, too vague in respect to the termini of the proposed canal, and the ownership and description of the parcel or parcels of land, through which the petitioners desire to drain ; and, perhaps, it would be difficult to support a title by means of an inquisition taken under it, without giving it more precision by an amendment. But the Court does not consider that point: since, whether the petition be sufficient or not, the decision of the County Court is not subject to review upon appeal, and the Superior Court has no jurisdiction to entertain the case upon its merits in point of fact. The case of Collins v. Haughton, 4 Ired. 420, establishes, that the inquisition must be exclusively under the order of the County Court, and that no appeal lies in a case of this sort under the act. Rev. Stat. ch. 40. His Honor ought not, therefore, to have entertained the appeal, but have dismissed it, as having been improvidently allowed. Instead of doing so, however, the Court proceeded to determine the merits de novo upon the matters of fact and law. In doing so there was error, according to the case cited, and, as we think, the proper construction of the act. The opinion of the Court, therefore, is, that the order of the Superior Court ought to be reversed. This will be certified to that Court, to the end that the appeal be there dismissed and a. procedendo awarded to the County Court.. _

Per Curiam. Ordered accordingly.