
    OSCAR M. CRAVEN v. THE BOARD OF COMMISSIONERS OF UPPER CODDLE CREEK DRAINAGE DISTRICT.
    (Filed 4 December, 1918.)
    Drainage Districts — Owner of Lands — Contracts—Damages—Drainage Commissioners — Judicial Acts — Fraud and Collusion — Individual Liability.
    Tbe relation between the owner of lands within a drainage district created by statute and the commissioners thereof, the former in paying the assessment levied and the latter in laying out the district, cutting drainage canals, etc., in all respects in accordance with the requirements of the statute, is not in the nature of a contract for the failure to perform which, in respect to cutting a drainage ditch or removing obstructions therefrom, the drainage district is liable to the owner for damages done to his land by improper drainage, the commissioners having the right and power, in the exercise of their judgment, to correct and modify the details of the report of the engineer and viewers; and their acceptance of the work done under a contract in conformity with the maps and plans obtained according to the requirements of the statute, being a.judicial act, it cannot be questioned, except for fraud and collusion, and then only to fix the commissioners with personal and individual liability. Chapter 442, sec. 21, Public Acts of 1909.
    Action- beard upon demurrer to complaint by Webb, J., at May Term,, 1918, of Iredell.
    Tbe court sustained tbe demurrer and dismissed tbe action. Plaintiff appealed.
    
      II. P. Grier and A. L. Starr for plaintiff.
    
    
      Zeb V. Turlington for defendant.
    
   Brown, J.

Tbe complaint alléges, in substance, tbat plaintiff owns certain lands witbin tbe defendant drainage district; tbat in 1916 defendant “entered into a contract for tbe cutting of a canal tbrougb tbe lands embraced in said district, including those of plaintiff, wbicb contract provided, among other things, for tbe cutting said canal to tbe width and depth as specified in.tbe plans and specifications of tbe engineer making tbe survey of the stream and lowlands; tbat, based upon said plans and specifications for tbe cutting of tbe canal and draining said lowlands, tbe proper legal authorities of defendant bad viewed plaintiff’s lands and has assessed against tbe same tbe sum of $204.30, wbicb became and was a lien upon tbe lands of plaintiff witbin said district, and wbicb plaintiff was required and did pay before said canal was cut tbrougb tbe lands of plaintiff and those lying below bis lands on said stream in said district.”

Tbe complaint further alleges tbat defendant did construct, cut, and excavate said canal according to tbe plans and specifications of tbe engineer and upon wbicb it bad assessed and collected assessment against plaintiff’s lands, but failed and neglected to remove obstruction immediately below plaintiff’s land in said canal, and failed and neglected to cut said canal and excavate tbe same to tbe required depth, so tbat same was obstructed and prevented tbe flow of tbe waters therein, and not of sufficient depth and width to drain tbe lowlands of plaintiff, whereby said land remained wet and unfit for cultivation and unimproved to tbe great damage of plaintiff, to wit, in the sum of $204.30, with interest thereon from the 25th day of November, 1916.

The defendant demurs upon the ground that it is a corporation created by the State for drainage purposes, and that upon the facts stated in the complaint the action cannot be maintained.

A reading of the complaint discloses that this is not an action for damages for negligent performance of duty against the individuals composing the board of commissioners, but an action against the corporation itself for a supposed breach of contract in constructing a canal in which plaintiff seeks to recover the money paid out under the contract and interest on it. This is an erroneous view of the relation existing between plaintiff and defendant. Such relation was not contractual in its nature. The $204.30 was not paid in pursuance of a contract of agreement. It was an assessment levied by law upon the lands of plaintiff for the construction of a drainage canal running through the drainage district. The assessment is not based upon an agreement to pay it or any contract to construct the canal in a certain way. It is based solely upon the cost of the work, the extent and value of the land, and the benefits it would probably receive from this construction of the canal.

The defendant has the power, and, so far as the complaint discloses, employed a competent engineer, who made all the plans and specifications for the construction of the work, and under whose supervision the work was done.

Under the statute, the board of commissioners have the power to correct 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. Chapter 442, sec. 21, Public Acts of 1909.

The acceptance of the work of the contractors as a compliance on their part with the contract was 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.

Affirmed.  