Apparently tbe ruling of tbe trial court assigned as error on this appeal is predicated upon tbe provisions of G.S. 156-51, prescribing tbe penalty for nonpayment of drainage assessments.
*667This statute provides tbat “whenever any person whose lands have been adjudged liable to contribute to the maintenance or repair of such-canal shall fail or refuse to pay the amount assessed against his land for such maintenance or repair for thirty days after such payment has been demanded by the company, then the company may give such person notice in writing of its intention to cut off his right of drainage into the canal, and if such person shall still neglect and refuse to pay such assessment for thirty days after such notice, then the company may proceed to so obstruct and dam up the ditches of such delinquent as will effectually prevent his draining into the canal.”
But this statute is inapplicable to the factual situation in hand. Sub-chapter II of Chapter 156 of the General Statutes, entitled “Drainage by Corporation,” prescribes in Article 3, comprising Sections G.S. 156-37 through G.S. 156-43, the “manner of organization” of corporations for the construction of canals. And in Article 4, comprising Sections G.S. 156-44 through G.S. 156-53, and including Section G.S. 156-51, the “Eights and Liabilities in the Corporation,” are defined. And in Section G.S. 156-51, the penalty relates to obstruction and damming of “ditches”' that drain into the canal. Thus it seems clear that the provisions of G.S. 156-51 relate only to stockholders in the corporation so formed.
In the case in hand it is stipulated that neither the defendant nor her predecessors in title are, or were stockholders in the plaintiff corporations which were organized under Sub-chapter II of Chapter 156 of the General Statutes. Hence the provisions of G.S. 156-51 are unavailing to her.
On the other hand, Sub-chapter I of Chapter 156 of the General Statutes of North Carolina entitled “Drainage by Individual Owners,” comprising Section G.S. 156-1 through G.S. 156-15, authorizes, and prescribes the procedure for, “any person owning pocosin, swamp, or flat lands, or owning lowlands subject to inundation, which cannot be conveniently drained or embanked so as to drain off or dam out the water from such lands, except by cutting a canal or ditch, or erecting a dam through or upon the lands of other persons,” to apply for, and to obtain the right to cut such canal or ditch, or to erect such dam. The statute provides for the appointment of commissioners, G.S. 156-2, prescribes the duty of the commissioners, G.S. 156-3, and requires report and confirmation of report of commissioners, by which easement is acquired. G.S. 156-4.
And in Section G.S. 156-10 the privilege of cutting into and draining through canal or ditch of another is granted, and the procedure for acquiring such privilege is prescribed. This section of the statute reads in pertinent part: “Any person desirous of draining into the canal or diteh of another person as an outlet may do so in the manner hereinbefore provided . . . And the privilege of cutting into such canal or ditch may be granted under the same rules and upon the same conditions and re*668strictions as are provided in respect to cutting the first canal or ditcb . . . Provided, that any party to the proceeding may appeal from the judgment of the court rendered under this Section to the Superior Court •of the county at term time, where a trial and determination of all issues raised in the pleadings shall be had as in other cases before a judge and jury.”
And the statute, in Section Gr.S. 156-11, declares that, “Besides the damages which the commissioners may assess against the petitioner for the privilege of cutting into such canal or ditch, they shall assess and apportion the labor which the petitioner and defendants shall severally •contribute towards repairing the canal or ditch into or through which the petitioner drains the water from his lands, and report the same to court, which, when confirmed, shall stand as a judgment of the court against ■each of the parties, his executors and administrators, heirs and assigns.”
And provision is made in Gr.S. 156-12 for notice of making repairs, and in Gr.S. 156-13 for judgment against owner in default for the value of his proportionate share of work and labor, “which judgment shall be a lien upon the lands from the date of the performance of the work.”
Also it is provided in Gr.S. 156-14 that “all persons to whom may descend, or who may otherwise own or occupy lands drained by any canal or ditch, for the privilege of cutting which any labor for repairing is assessed, shall contribute the same, and shall be bound therefor to all intents and purposes, and in the same manner and by the same judgment as the original party himself would be if he occupied the land.”
In the light of these provisions, it may be assumed that, since there was litigation in respect thereto, Joseph Keys, the predecessor in title of defendant, in exercising the right to cut into the canals of plaintiff, did so under, and pursuant to the provisions of the statute granting such right. G.S. 156-10. And if Joseph Keys did not initiate such proceeding, it may be assumed that the assessment of damages in the litigation to which reference is made in the record was made under the provisions of the statute.
Nevertheless, the record and case on appeal fail to show the proceeding, or the report of commissioners, or that commissioners assessed and apportioned the labor which he, the said Joseph Keys, should contribute toward repairing the canal into or through which he drained the water from his land. Hence it seems expedient that the cause be remanded for the ascertainment of the facts in these respects. And if it should appear •either that in the proceedings had no commissioners were appointed in accordance with the statute, or that commissioners were appointed and failed to assess and apportion the labor which Joseph Keys should contribute, as aforesaid, the petition filed by the petitioners in the proceeding *669in hand may be considered a motion in the cause, — and the rights of the parties determined in accordance with law and justice.
Error and remanded.