Tfie case agreed substantially sets forth these facts: Tfie Dover Lumber Company, a corporation, owned certain rights to cut standing timber upon tfie lands of the West estate, situated witfiin tfie Moseley Creek Drainage District. Tfie timber was conveyed to plaintiff, with tfie privilege of removing it witfiin a stipulated period, prior to tfie formation of tfie drainage district.
"When tfie district was formed tfie plaintiff was not made a party nor served ivitfi summons, neither was tfie particular timber or tfie plaintiff referred to anywhere in tfie proceedings. No summons was issued against tfie plaintiff, and there ivas no apparent sendee upon it.
The owner of tfie land known as tfie West estate was a party and an assessment ivas levied against tfie land. Tfie grounds upon which plaintiff asks injunctive relief are: (1) That plaintiff fias fiad no notice of and is no party to tfie drainage proceeding; (2) that standing timber, tfie title to which has been severed from tfie land by conveyance, is not the subject of assessment under statute. It is contended that injunction is not tfie proper remedy.
Tfie plaintiff ivas not only not served ivitfi summons or other notice in the drainage proceedings, but ivas not an apparent party. Tfie judgment ivas, therefore, absolutely void as to it, and could be attacked collaterally. Had plaintiff been an apparent party and fiad there been apparent service on it, then tfie remedy would be by motion in tfie cause. Where it appears on tfie face, of a legal proceeding that a party against whom execution is issued has not been made a party, and that there has been no service of summons, tfie judgment is void as to him and its enforcement will be restrained. Bowman v. Ward, 152 N. C., 602.
Our drainage statute is mandatory in requiring a “summons to be served on all tfie defendant landowners who have not joined in tfie petition and whose lands are included in tfie proposed drainage district.” Tfie drainage laws of North. Carolina have been largely copied from tfie acts in Indiana and Illinois, and following the construction *119of these acts in these and other States for the long period of time the acts have been in force, it is essential. that notice of summons in all such proceedings be given to all parties who will be affected thereby. Sites v. Miller, 120 Ind., 19, citing numerous authorities; Kinney v. Ball, 68 Mich., 625; Curram v. Sidney Co., 47 Minn., 313; Baltimore, etc., R. R. v. Wagner, 43 Ohio State, 75. In those States it is held that where, the mandate of thei statute is that notice shall be given in the manner and for the. time therein prescribed, before the time fixed for the hearing of the petition, failure to give this notice as required will render invalid any assessment against a person, who is not so notified. Yolo Co. Reclamation District v. Burger, 122 Cal., 442; Craig v. People, 188 Ill., 416; McMullen v. State, 105 Ind., 334.
In the Supreme Court of the United States it has been held in the enforcement of a drainage assessment, the question of due process of law does arise where the defense goes to the validity of the service. Hager v. Reclamation District, 111 U. S., 701.
The ease of Banks v. Lane, 170 N. C., 14, differs materially from this. In that case it was held that where the landowner had been. made a party and the land duly assessed, a mortgagee need not be made a party, as the proceeding is one in rem, and the draining of the land inured to his benefit as well as to that of the mortgagor; hence the mortgagee could not restrain the collection of the assessment.
Upon rehearing, 171 N. C., 505, there were two concurring opinions, with one justice dissenting in toto. M'r. Justice Walker concurred in the decision that the remedy was by .motion in the original proceedings, upon the ground that it did not appear affirmatively on the face of the Craven judgment that there was no service of the summons. The writer concurred upon the same ground, and further, that it did appear that the lands belonging to Mrs. Spivey were set' out and embraced in the drainage proceedings and were duly assessed in her name as one of the landowners within the drainage district.
One of the essentials of a proceeding in rem is that the property sought to be charged shall be identified by description in the proceedings. Nothing of the sort appears in this drainage proceeding. The owner of the timber lease had no right to assume that his timber would be separately assessed because the owner of the land upon which it grew had been made a party. ■ The assessment of the timber lease appears to have been an afterthought of the viewers, and does not appear to have been contemplated when the proceeding was first initiated.
The second position of plaintiff is that a timber lease does not coriie within the letter or spirit of the statute and is not assessable for *120drainage purposes. It appears to us that tliat proposition is undoubtedly correct.
When standing timber is severed by conveyance from the land, with the right to cut and remove within given period all timber of a certain size, it is no longer a part of the land. The owner of the timber is not a freeholder or landowner from the mere fact of owning a timber lease. It is true, we have held that timber is to be considered as land for purposes of conveyancing, but it does not follow the land after it has been so conveyed and .is no longer a part and parcel of it.
The statute provides for issuing drainage Ponds to be paid in annual installments by assessments on the lands. These assessments “shall constitute the first and paramount lien, second only to county and State taxes.”
If the standing timber is assessable separate from the land, and if the assessment is a lien on the timber, the owner of the bond can restrain the cutting of the timber until the bonds are paid, and if the term for cutting is less than ten years, the owner of the timber would lose all of it, as he could not cut within the ten .years and the timber not cut within that time would belong to the owner of the land.
The statute requires only landowners to be made parties in such drainage proceedings, and that the proceeding shall be initiated only by a majority of the "resident landownersIt provides that for purposes of assessment the lands shall be divided into five classes, and that “the degree of wetness of the lands, its proximity to the ditch or a natural outlet, and the fertility of the soil shall be considered in determining the amount of benefit it will receive by the construction of the ditch.” It is useless to quote further from the. act. It is sufficient to say that its entire context plainly indicates that timber leases, such as the one held by plaintiff, do not come within its purview, and that its purpose is to facilitate the drainage of lands for agriculture.
It was well known to the General Assembly that much of the standing timber upon the lands of this State has been sold, with the right to cut and remove it limited, as in this case, to á few years. Had it been intended by the statute to embrace such leases within its terms, the Legislature would have said so and doubtless have provided a method of assessment measured by the benefit, if any, accruing to the timber exclusively during the actual existence of the lease, and not, as in this case, amounting to practical confiscation.
The 'judgment is reversed and the cause remanded to the Superior Court of Craven County with direction to enter judgment for plaintiff in accordance with this opinion.
Reversed.