
    PORTER v. ARMSTRONG.
    (Filed March 22, 1904).
    1. JURY — Special Proceedings — Drains—The Gode, secs. 1297, 1821/ — ■ The Gode, sees. 1992, 191/6.
    
    In a proceeding to drain lowlands, where the questions raised by the answer are such as would be passed upon by commissioners, the parties are not entitled to a jury trial, and the clerk of the superior court should appoint the commissioners.
    2. ESTOPPEL — Judgment—Pleadings.
    An estoppel should be pleaded with such certainty that it may be seen from the pleadings what facts are relied on.
    3. APPEAL — Orders—The Gode, sec. 51/8. ■
    
    An order in a drainage proceeding directing matters which are properly for the determination of the commissioners to be referred to a jury is appealable.
    Douglas, J., dissenting.
    AotioN by Elisba Porter against T. J. Armstrong, beard by Judge G. 8. Ferguson, at January Term, 1904, of tbe Superior Court of PeNder County.
    Tbe plaintiff instituted tbis proceeding against tbe defendant by filing bis petition in tbe office of tbe Clerk of tbe Superior Court and issuing a summons in accordance witb tbe provisions of chapter 30, section 1297, of Tbe Code, alleging ownership of a tract of “swamp, flat or low land”— particularly described — known as tbe “Pigford farm.” That tbe defendants were tbe owners of said land adjoining and “below tbe said Pigford farm.” That a portion of bis land was ditched, cleared and under cultivation and was subject to inundation and sog. It could not be drained except by clearing or cutting out a canal, known as tbe Strawberry canal, etc., which was cut through the defendant’s land, etc., and constitutes the only natural outlet to the waters of Pigford farm. The plaintiff prayed that commissioners be appointed pursuant to chapter 30 of The Code.
    The defendants Armstrong and Mrs. Durham’s answer admitting the ownership of the land by the plaintiff and defendants, denies that the plaintiff’s land is “swamp, flat and low land.” They deny that the plaintiff’s land is subject to inundation and that it cannot be conveniently drained except in the manner pointed out by the petitioner. They also deny certain averments in regard to the use of the canal. They aver that the canal is not cut through their land; that it stops some distance before it reaches the plaintiff’s land. They allege that the plaintiff has diverted his water and has violated certain contracts, and they say that the plaintiff “has been harassing these defendants with suit after suit in court, and the said suits have been appealed to the Supreme Court of North Carolina, and it has been decided more than once that the petitioner has no right to drain into the Strawbery canal, and these defendants plead the same as an estoppel against the petitioner having any relief herein.”
    They further say that the petition is not filed in good faith and for the bona fide purposes as alleged in said petition, but for the purpose of obtaining for the petitioner the right to drain the Strawberry canal water which the plaintiff has diverted from its natural course and thereby injured the defendant; and that the petition is filed for no other purpose than to harass and annoy the defendants, etc.; that the plaintiff has other means of draining his land than through the defendants’ land.
    When the cause came on for hearing upon the petition and answer, the defendants made a motion that the cause be sent to the Superior Court and placed upon the trial docket to try the issues of fact raised by the answer. They also insisted that a plea in bar had been set up in the answer which was to be'passed upon before any commissioners could be appointed. The Clerk allowed the motion and transferred the cause to the civil issue docket of the Court, and the plaintiff excepted and appealed to the Judge.
    At January Term, 1904, of the Superior Court, the Judge presiding affirmed the judgment of the Clerk, denied the plaintiff's motion that commissioners be appointed, and ordered certain issues to be submitted to the jury.
    The plaintiff excepted and appealed.
    
      John D. Bellamy, Stevens, Beasley £ Weeks and Shepherd £ Shepherd, for the plaintiffs.
    
      E. K. Bryan and J. T. Bland, for the defendants.
   CONNOR, J.

It is a source of regret and surprise that the procedure prescribed by the drainage laws (the first of which was enacted at the session of the General Assembly of 1795, chapter 436), should continue to be in doubt and uncertainty, resulting in delay and expense. The difficulty has doubtless arisen from the changes wrought in our judicial system and mode of procedure. The substantial features of the law have been retained in the several Codes of the statute law of the State. Chapter 40 of the Revised Statutes was brought forward in the Revised Code; no change in the procedure was made until 1868. The original statute required the petition to be filed in the County Court, and provided for the appointment of twelve jurors who were required to make their report to the County Court, “which shall be recorded in said court.” The construction of the act in regard to the power and duty of the Court, and the right of the party dissatisfied to appeal, came before this Court in Collins v. Houghton, 26 N. C., 420. The Court, adopting tbe principle announced in Railroad v. Jones, 23 N. C., 24, regarding tbe construction of statutes providing for tbe condemnation of land for railroads, says that tbe County Court could “only direct tbe verdict to be recorded or order a new jury, and from its action no appeal could be taken.” Nash, J., said: “Tbe jury thus constituted is tbe special tribunal to whom by tbe act tbe power exclusively belongs to say whether tbe land does need to be drained, and if so what ditches shall be dug, and tbe amount of tbe damage to be paid to tbe owners of tbe land through which they may pass.” Tbe Court held in Railroad v. Jones, supra, that the general law in regard to appeals bad no application. It was, however, in that case said: “In denying tbe parties tbe right of appeal in cases of this kind, we do not deny them tbe privilege of having their cases heard before a superior tribunal. Any error which may be committed by tbe County Court in its action may be revised and corrected in tbe Superior Court, through tbe instrumentality of a writ of error or a certiorari in tbe nature of a writ of error.” Tbe practice under tbe provisions of tbe act, permitting tbe condemnation of land for tbe site of a public mill (Tbe Code, chapter 43, Acts 1177, chapter 122), was considered by tbe Court in Brooks v. Morgan, 27 N. C., 481. It was held that tbe general provisions for appeals did not apply to “summary and peculiar proceedings not according to tbe course of tbe common law, but prescribed by statute under peculiar circumstances.” Tbe language of Gaston, J., in Railroad v. Jones, supra, is: “Tbe mode of procedure was intended to be cheap and expeditious, all which purposes would be frustrated by allowing either party tbe unlimited right of appeal.”

This construction of tbe drainage act was uniformly followed by this Court prior to tbe change in our judicial system in 1868. Upon tbe filing of tbe petition the County Court appointed tbe jury. They went upon tbe land, decided upon personal inspection tbe necessity of tbe ditch, located it, and assessed tbe damage to be paid by tbe petitioner. They made their report, and after tbe adoption of the amendment made by tbe Revised Code, chapter 140, tbe Court “confirmed tbe report unless good cause be shown to tbe contrary.” Stanly v. Watson, 33 N. C., 124.

In Skinner v. Nixon, 52 N. C., 342, Pearson, G. J., examines tbe provisions of tbe act and discusses them at length, saying that tbe action of tbe County Court was subject to be reviewed in tbe Superior and Supreme Courts, “not by way of unlimited appeal which would vacate as well tbe report of tbe commissioners as tbe judgment of tbe County Court, and make it necessary for tbe Superior Court to proceed de novo, but by way of writ of certiorari in tbe nature of a writ of error, which would be in effect a limited appeal — in other words, an appeal restricted to tbe questions which tbe County Court was authorized to pass upon— leaving tbe report of tbe commissioners open to be confirmed or set aside according to tbe decision reviewing tbe action of tbe County Court.” In Shaw v. Burfoot, 53 N. C., 344, tbe petition was dismissed because it did not conform to tbe provisions of tbe statute. In Brooks v. Tucker, 61 N. C., 309, tbe report was set aside because it failed to conform to tbe statute. These cases were reviewed for error apparent on tbe record. They were brought up to tbe appellate ■court by a limited appeal, as pointed out by Pearson, C. J., in Skinner v. Nixon, supra. Norfleet v. Cromwell, 70 N. C., 634, 16 Am. Rep., 787, was a “civil action upon a ■covenant” and not under tbe drainage law. Tbe able and interesting discussion of Mr. Justice Rodman is upon tbe rights of tbe parties in regard to tbe easement. In Gamble v. McCrady, 75 N. C., 509, tbe proceeding was brought under tbe provisions of chapter 39, Battle’s Revisal, being chapter 137, Laws 1869-70. Rodman, J., noted that chapter 40 of the Revised Code had been omitted from the revisal and the Act of 1869-70 substituted therefor. This, however, did not operate to repeal chapter 40 of the Revised Code. This chapter, with all its amendments and other drainage laws, is re-enacted in chapter 30 of The Code of 1883. The petition, with the same averments required by the Act of 1795, must now be filed in the “Superior Court,” that is, before the Clerk, and a summons issued and served. Upon tile hearing of the petition the Court shall appoint commissioners. Sections 1298 and 1299 prescribe the duties and method of the procedure of the commissioners. Section 1324 enacts that “the proceeding is made the same as prescribed in other special proceedings.” This Court undertook to harmonize the several statutes relating to the practice in these cases in Darden v. Simmons, 84 N. C., 555. While it was there held that the answer did not raise any issue as to title, it is said that if it had done so such issue should be tried before proceeding to the appointment of commissioners. The reason is obvious, as pointed out by Smith, G. J. ■ It would seem that if in cases of this kind the answer raised an issue of fact, the decision of which in favor of the plaintiff was essential to the further prosecution of the petition, the Clerk would stay proceedings until such issue was decided in accordance with the practice in other special proceedings. If questions of law are presented and decided by the Clerk before the appointment of the commissioners, an appeal directly to the Judge may be taken, and his decision will be certified to the Clerk, who will proceed in the cause as directed. This course harmonizes the language of the statutes with the construction put upon section 1892 of The Code regarding petitions for partition. This practice should be strictly confined to defenses which lie at tbe threshold of the cause and pleas in bar. In respect to questions, the decision of which are committed to the “special tribunal” provided by the statute, the Clerk should proceed to apj)oint commissioners. When the report of the commissioners comes in, exceptions to it may be filed and heard by the Clerk. An appeal may be taken from his judgment, and his rulings reviewed, as was said by Pearson, C. J., in Skinner v. Nixon, supra, being an appeal restricted to questions which the (Clerk) County Court was authorized to pass upon, leaving the report of the commissioners open to be confirmed or set aside according to the decision reviewing the action of the Court (Clerk). In this way, while the rights of the parties to have the action of the Clerk reviewed are secured, useless and expensive delays are avoided, and effect is given to section 1324 of The Code. We do not find in chapter 30 the language contained in section 1946, construed in Railroad v. Newton, 133 N. C., 132, prescribing the procedure in petitions for condemning rights of way for railroads. It is there expressly enacted that “upon the. coming in of the report, exceptions may be filed and upon the determination of the same either party may appeal.” This Court has uniformly held that in proceedings under that statute no appeal can be taken until the coming in of the report. Telegraph Co. v. Railroad, 83 N. C., 420; Railroad v. Newton, supra.

The defendant contends- that the cases decided by the Court in regard to the right of the defendant to have a jury trial should not be followed, because the present Constitution expressly secures to him the right to trial by jury. We do not perceive any difference between the language of section 14 of the Declaration of Rights of 1YY6 and section 19 'of our present Constitution. They are in identically the same words. It is true that the Court has held that controversies at law include all civil actions, “suits in equity” having been abolished by tbe Constitution. This principle has never been understood to extend to proceedings “not according to tbe course of tbe common law” or to summary statutory proceedings.

Guided by tbe principles and procedure wlricb we think correspond to tbe provisions of tbe statute and tbe decisions of tbis Court, we proceed to consider tbe defendant’s answer to ascertain whether any issues of fact are raised which must be determined by a jury at a regular term of tbe Court. Referring to matters set up in tbe answer in Darden v. Simmons, sufra, of a character similar to much of the answer in tbis case, Smith, C. J., says: “We give all tbe effect to which tbe answer is fairly entitled in construing it as a denial of tbe relations between tbe lands and tbe necessity and propriety of burdening tbe one for tbe other, and tbis under tbe statute is tbe appropriate function of the commissioners from the words of the act.” We gather from this language that the allegations regarding the necessity for tbe ditches to drain tbe plaintiff’s land were proper to be submitted to tbe commissioners when appointed, and was tbe basis for issues to be tried by a jury.

In Winslow v. Winslow, 95 N. C., 24, no objection was made to tbe issues submitted. Merrimon, J., said: “No question is made as to tbe regularity and propriety of submitting to tbe jury tbe issues set out in tbe record, and we advert to them for tbe purpose of saying that it may be questionable whether it is proper to submit such as they are.” In Railroad v. Ely, 101 N. C., 8, no objection was made to the issues submitted. In Railroad v. Parker, 105 N. C., 246, the appeal was taken after the coming in of the report. Tbe Court held that tbe party filing exceptions was not entitled to a jury trial. We are therefore of tbe opinion that tbe questions involved in tbe first, second, fifth, sixth and seventh issues submitted by bis Honor should be passed -apon, by the commissioners when appointed and do not present issues of fact to be tried by the jury.

The third and fourth issues are directed to an alleged estoppel growing out of an agreement made by one Levin Lane, a former owner of the defendant’s land, and one Berry formerly owning the plaintiff’s land; also a plea of res judicata based upon suits heard and determined between the parties. We are not quite sure that we correctly interpret the language of the answer in respect to these matters. If, as we understand, it is sought to estop the plaintiff by the agreement referred to, the terms and extent of the agreement should have been fully set forth. If it was a personal license to drain through the defendant’s land it was not enforceable, and therefore could not work an estoppel to prosecute this petition. In regard to the suggestion that the matter set up in the petition is res judicata, we cannot see how, in the uncertainty of the reference to the alleged suits, an issue can be drawn. No reference is made to any particular suit. An estoppel which “shutteth a man’s mouth to speak the truth” should be pleaded with certainty and particularity. 8 Enc., Pl. & Pr., 11. The Court should be able to see from the pleadings what facts are relied upon to work the estoppel. The defendant’s counsel in their well-considered brief make no reference to this part of their answer. If the defendant desires to set up the estoppel as a plea in bar, it is within the power of- the Clerk, if he shall think it in furtherance of justice, to permit him to do so by way of an amendment to his answer.

We do not find anything in the decisions of this Court, in the several cases which have come before us between the parties, which would estop the plaintiff from prosecuting his petition. Douglas, in Porter v. Armstrong, 129 N. C., 101, says: “While the question is not now before us, we see no reason, as at present advised, why the petitioner cannot proceed under chapter 30 of The Code.” This petition is based upon the theory that the plaintiff has no easement or other right to drain through the defendant’s land. If this is not true, he cannot maintain his petition.

We conclude upon the record that no plea in bar has been sufficiently pleaded; that the matters set up in the answer, other than those relied upon for the plea, are properly triable by the commissioners to be appointed by the Clerk. We think the order of the Court appealable under section 548 of The Code. It would be an idle and expensive thing to try this cause before a jury, only to have the same questions submitted to the commissioners after verdict. It is one of the anomalies in the practical working of our laws, that a statute passed more than a century since for the promotion of agriculture, the opening of swamp lands, and increasing the capacity of the earth to bring forth bread for the people, should be a subject of expensive litigation and almost hopeless delay. Without expressing any opinion in regard to the merits of this long-standing controversy, we are struck with the fact, as appears from the records of this Court, that for nearly thirty years the owners of these lands have been in litigation in regard to their drainage. We cannot but indulge the hope that when three disinterested intelligent freeholders shall view the premises and find the facts, both parties may find it consistent with their sense of justice and their own interests to abide the judgment.

Let this opinion be certified to the Superior Court of Pender County, to the end that further proceedings may be had in accordance therewith.

Error.

Douglas, J., dissents.  