ART. 2. RIGHTS AND LIABILITIES IN THE CORPORATION.

629. Petition filed in superior court. Any proprietor in fee of swamp lands, which cannot be drained except by cutting a canal through the lands of another or other proprietor in fee, situated at a lower level and which would also be materially benefited by the cutting of such canal, who desires that such canal be cut on the terms on which it is hereinafter allowed, may apply by petition, setting forth the facts, to the superior court of the county in which any of the lands through which the canal will pass may lie.

a summary

C. S., s. 5295; Rev., s. 3996; Code, s. 1311; 1868-9, c. 164, s. 2. Drains § 81. When properly construed, section furnishes method of collecting these assessments without resorting to the Superior Court. Middle Canal Co. v. Whitley, 172 N. C. 100, 90 S. E. 1.

630. Commissioners appointed; report required. On the es tablishment by the petitioner of his allegations, the court shall appoint three persons as commissioners who, having been duly sworn, shall examine the premises and inquire and report:

1. Whether the lands of the petitioner can be conveniently drained otherwise than through those of some other person.

2. Through the lands of what other persons a canal to drain the lands of the petitioner should properly pass, considering the interests of all concerned.

3. A description of the several pieces of lands through which the canal would pass, and the present values of such portions of

the pieces of lands as would be benefited by it, and the reasons for arriving at the conclusion as to the benefit.

4. The route and plan of the canal, including its breadth, depth, and slope, as nearly as they can be calculated, with all other particulars necessary for calculating its cost.

5. The probable cost of the canal and of a road on its bank, and of such other work, if any, as may be necessary for its profitable

use.

6. The proportion of the benefit (after a deduction of all damages) which each proprietor would receive by the proposed canal and a road on its bank if deemed necessary, and in which each ought, in equity and justice, to pay toward their construction and permanent support.

7. With their report they shall return a map explaining, as accurately as may be, the various matters required to be stated. in their report.

C. S., s. 5296; Rev., s. 3997; Code, s. 1312; 1868-9, c. 164, s. 3.

Drains § 76. Though no notice of meeting for preliminary inspection for drainage district was given, that is immaterial, where the assessment was duly ratified and confirmed at a subsequent meeting regularly called and held in accordance with statute.-Middle Canal Co. v. Whitley, 172 N. C. 100, 90 S. E. 1.

631. Surveyor employed. The commissioners may employ a surveyor to prepare the map required to accompany their report. C. S., s. 5297; Rev., s. 3998; Code, s. 1313; 1868-9, c. 164, s. 4.

632. Confirmation of report. If it appear that the lands on the lower level will be increased in value twenty-five per cent or upwards by the proposed improvement, within one year after the completion thereof, and that the cost of making such improvement will not exceed three-fourths of the present estimated value of the land to be benefited, and that the proprietors of at least one-half in value of the land to be affected consent to the improvement, the court may confirm such report, either in full or with such modifications therein as shall be just and equitable. C. S., s. 5298; Rev., s. 3999; Code, s 1314; 1868-9, c. 164, s. 5.

633. Proprietors become a corporation. Upon a final adjudication, confirming the report, the proprietors of the several pieces of land adjudged to be benefited by the improvement shall be declared a corporation, of which the capital stock shall be double the estimated cost of the improvements, and in which the several owners of the land adjudged to be benefited shall be corporators, holding shares of stock in the proportions in which they are ad

judged liable for the expense of making and keeping up the improvement.

C. S., 5299; Rev., s. 4000; Code, s. 1315; 1868-9, c. 164, s. 6.

634. Corporate name; officers; powers. The person assessed to pay the highest sum shall be president of the company until another shall be elected; he shall, or in case of his refusal or an unreasonable delay, any other stockholder may, call a meeting of the corporators. The corporators shall choose a corporate name, elect a president and such other officers as may be necessary and make all by-laws and regulations, not contrary to law, which may be necessary or proper for effecting the purposes of the corporation; they shall fix the number of shares of stock, and assign to each proprietor, his proper number; they shall assess the sums which shall be payable by each proprietor, and to ascertain the time and mode of payment in every meeting each proprietor shall vote once for each share owned by him.

C. S., s. 5300; Rev., s. 4001; Code, s. 1316; 1868-9, c. 164, s. 7.

635. Incorporation of canal already constructed. Whenever the proprietors of any canal already cut shall desire to become incorporated, any number of the proprietors, not less than onethird in number, may file their petition before the clerk of the superior court of the county in which the canal is located, or in either county, where the canal may be located in more than one county, setting forth the names of the proprietors, the length and size of the canal, the name of the owners of land draining in such canal, and the quantity of land tributary thereto. And upon filing the petition, summons shall issue to all parties having an easement in the canal, returnable as in other special proceedings; upon the return thereof, or upon a day fixed by the clerk for hearing same, all owners of the canal may become corporators therein, and upon failure of any to avail themselves of that right, they shall not be entitled to become corporators, except under such by-laws and regulations as such corporation shall make and declare. But those who fail to avail themselves of the benefit of this subchapter shall not be deprived of their easement in the canal, but shall enjoy the same upon payment to the corporation of the assessment made upon them pro rata with the corporators; such assessment shall be made on the land tributary to the canal and apportioned pro rata to each owner thereof; it shall be made. by the corporation on ten days' notice to each owner of the land, under such rules and regulations as the by-laws may prescribe; but any person dissatisfied therewith shall have the right to ap

peal to a jury at the regular term of the superior court of the county, and the amount of damages assessed shall be a first lien on the land of the owner against whom judgment shall be rendered: Provided, that in making such assessment upon landowners who are not members of the corporation it shall be unlawful to charge in such assessment any charges or per diem pay for the officers of such canal company against the owner of such land, and any such attempt to charge the salaries of per diem of officers of the canal company in such assessment shall render the same void.

C. S,. s. 5301; Rev., s. 4008; 1889, c. 380; 1901, c. 670.

ART. 2. RIGHTS AND LIABILITIES IN THE
CORPORATION.

636. Shares of stock annexed to land. The ownership of the shares of stock is indissolubly annexed to the ownership of the pieces of land adjudged to be benefited by the improvement; and such shares, or a part thereof proportionate to the area of such land that may descend or be conveyed for any longer time than three years, shall, upon such descent or conveyance, descend and pass with the land, even although such shares be not mentioned in the deed of conveyance, and although their transfer be forbidden by such deed so that every owner of such land in possession, except tenant for a term of years, not exceeding three, and every owner in reversion or remainder after a term not exceeding three years, shall, during his ownership, be entitled to all the rights and privileges and be subject to all the obligations and burdens of a corporator. Every attempted sale of shares otherwise than as annexed to the land shall be void.

C. S., s. 5302; Rev., s. 4002; Code, s. 1317; 1868-9, c. 164, s. 8.

637. Shareholders to pay assessments. Every corporator shall be bound to obey the lawful by-laws of the company, and pay all dues lawfully assessed on him: Provided, he shall in no case pay more than his proportion of the expenses as fixed by this subchapter; and such dues may be collected in the corporate name in any court having jurisdiction; and every assessment duly docketed in the county where the land to be affected lies shall be a lien on the lands of the debtor which are connected with the corporation from the date of such docketing.

C. S., s. 5303; Rev., s. 4003; Code, s. 1318; 1868-9, c. 164, s. 9.

Drains § 82. A drainage assessment, unless void on its face, cannot be attacked collaterally.-Middle Canal Co. v. Whitley, 172 N. C. 100, 90 S. E. 1.

Drains § 82. If there is an irregularity in a drainage assessment which does not avoid it on its face, it is the duty of one assessed to appeal to the district for correction.-Ibid.

Drains § 88. The drainage district cannot sue the person assessed, the liability attaching to the land being collectible only by proceedings in rem in equity, nor, if the land is insufficient to pay the assessment, can the balance be collected from the landowner.-Ibid.

Drains § 90. A personal judgment cannot be rendered against landowner, since only land is liable.-Long Creek Drainage Dist. v. Huffstetler, 173 N. C. 523, 92 S. E. 368.

638. Name of districts. The name of such drainage district shall constitute a part of its corporate name; for illustration, the board of drainage commissioners of Mecklenburg Drainage District, No. 1. In the naming of a drainage district the clerk of the court, notwithstanding the name given in the petition, shall so change the name as to make it conform to the county within which the district, or the main portion of the district, is located, and be also designated by number, the number to indicate the number of districts petitioned for in the county. For illustration, the first district organized in Mecklenburg County would be Mecklenburg County Drainage District, No. 1; name of the second would be Mecklenburg County Drainage District, No. 2; the fifth one organized would be Mecklenburg County Drainage District, No. 5: Provided, that so much of this section as provides for numbering the districts in each county shall not apply to districts in which bonds have been issued and sold prior to the fifth day of March, one thousand nine hundred and seventeen.*

C. S., s. 5338; 1909, c. 442, s. 19; 1917, c. 152, s. 17.