Shaw v. Burfoot, 53 N.C. 344, 8 Jones 344 (1861)

June 1861 · Supreme Court of North Carolina

53 N.C. 344, 8 Jones 344

H. M. SHAW AND B. M. BAXTER v JOHN F. BURFOOT.

Two, or more, separate proprietors of land 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.

This was a petition for commissioners to lay off of a ditch for drainage, heard before Heath, J., at the last Term of Currituck Superior Court.

The case came up from the County Court, by appeal, to the Superior Court.

The petitioners set forth that they are owners of certain lands on the east side of Indian ridge, which are subject to being overflowed, and that their value is thus greatly impaired ; that they have no means of draining them except through the lands of the defendant, and of others, (naming them,) who ■are made defendants, but who did not appeal; that said ditch ought to be upon and over the lands of these defendants, beginning with that of plaintiff Shaw.

The prayer is for commissioners to view the premises to as- ■ certain whether such ditch or drain be necessary — to direct of what size, and at what points it shall be cut, and prescribe the amount of work that each person, over whose lands it shall pass, and who may desire to drain into it, shall do in cutting and keeping the same in good order, and to assess the damage each party may sustain by such ditch.

The defendant, Burfoot, alone answered, taking exception to the form of the petition, especially to the fact that the plaintiffs had joined in the petition without setting out any joint interest in the contemplated- work.

The Court gave judgment, confirming the order of the county court, and appointed commissioners to go upon the land, and enquire and report; from which judgment the defendant, Burfoot, appealed.

W. A. Moore, for the plaintiffs.

Minton, for the defendant.

Manly, J.

The allegations of the petition are not such as to warrant proceedings in the names of the petitioners jointly. To make a petition by two or more separate proprietors of land, proper, in a case of the kind before us, it ought to be alleged that a common ditch (the one which they seek) would drain the land of all, and that in that way all have a joint interest in the object of their suit. No such allegation is made, nor is that state of facts inferable, at all, from the contents of the petition.

There are other substantial defects in the frame-work of the petition, which are objected to in the answer, and which the draftsman will at once perceive by comparing the petition with the method of proceedure pointed out in the Code.

The judgment of the Superior Court, appointing commissioners was erroneous, and should be reversed, and the defendant’s motion to dismiss sustained.

Per Curiam.

Judgment reversed and petition dismissed.