
    PATIENCE ARMSTRONG et al. v. W. A. BEAMAN et al.
    (Filed 23 February, 1921.)
    Drainage District — Petitioners—Withdrawal of Names — Statutes.
    Upon the return day set by the clerk of the court for the hearing of the landowners in a proposed drainage district, C. S., 5284, etc., it may be shown by those opposed to the petition that some of those who signed it desired to withdraw, and that eliminating their names the petitioners would not represent a majority of the landowners in the district, or such owning three-fourths of the lands, as the statute requires.
    Appeal from Calvert, J., at November Term, 1920, of PasquotaNK.
    This is an appeal from an order on a petition for the establishment of a drainage district. The petition having been filed on the hearing before the clerk, the petition was offered in evidence, together with other testimony on the part of the petitioners tending to show that said petition had been signed by a majority of the resident landowners in the proposed district, and by the owners of three-fifths of all the land affected or to be assessed for the expense of the proposed improvements.
    The defendants or cross-petitioners then stated that they were ready to offer testimony tending to show that many of those who originally signed the petition desired to withdraw, and that eliminating those desiring to withdraw there would not be sufficient signatures left on the petition to constitute a majority of the landowners, or to represent three-fifths of the acreage. The clerk stated that he would hear such testimony, but that he would hold that the allegations of the cross-petitioners, if proven, would not justify an order by him allowing said cross-petitioners to withdraw, and furthermore, would constitute no legal obstacle to the appointment of an engineer and viewers, as contemplated by the drainage act.
    
      Whereupon tbe clerk entered judgment as appears of record; it being agreed that tbe names of tbe engineer and viewers be left blank in said order, and filled in by tbe clerk at bis convenience after due inquiry as to tbe fitness of tbe proposed engineer and viewers.
    Upon tbe defendants’ or cross-petitioners’ appeal from tbis order of tbe clerk, bis Honor, T. H. Calvert, entered an order remanding tbe cause to tbe clerk witb directions to dismiss tbe petition if tbe cross-petitioners should establish their contention that eliminating those desiring to withdraw, sufficient signatures would not be left on tbe petition to show a compliance witb the provisions of tbe drainage act. To tbis order tbe petitioners excepted and appealed to tbe Supreme Court.
    
      W. L. Oohoon and Meekins & McMullan for plaintiff.
    
    
      Eliringhaus & Small and Aydlett & Simpson for defendants.
    
   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 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; Stockard v. Veal, 35 L. R. A. (N. S.), 115.

The order of the judge must be

Affirmed.  