Opinion
Memorandum. — In the winter vacation, to wit: on the 19th day of January, 1841, the Honorable Richard H. Bayard having been elected to the Senate of the United States, resigned his office of chief justice of this State; and the Honorable James Booth, of New Castle, was appointed in his place on the 12th of March, 1841, and took his seat at the commencement of this term.
Petition for an order to lay out a ditch. Order granted. Return made.
Ridgely, for the petitioners.
Cullen, contra.
On the coming in of the return, Mr. Cullen, for other owners than the petitioners, moved to set aside the return and order, on the ground 1st. That the order was not petitioned for by a majority of the owners of the low grounds. The return showed certain land belonging to the "heirs" of C. Jacobs; other land to the "heirs of W. Richards;" and Mr. Cullen contended that, in ascertaining the majority, all the heirs should be counted as one. 2d. That the return did not show of what depth the ditch should be cut: it directed the cutting to be of a sufficient depth. 3d. Because there was no sufficient delineation of the swamps. ( Dig. 161; 9 vol. 79; act of 1837.)
Court. — It appears that the petition and order in this case were for laying out two ditches entirely distinct, the one to drain lands on the head waters of Bridgeville branch, and the other lands at the head of Gray's mill-pond. The order has been separately executed, and the damages separately assessed. One ditch empties into Bridgeville branch, the other into the mill-pond. The petitioners are not a majority of the owners of land on both ditches, but they are a majority of the owners of the land on one of the ditches. The order is good as to one of the ditches, but bad as to the other; and the question we have considered is, whether the return is divisible; and we think it is, the commissioners having carefully distinguished between the ditches. As to the objections that the depth of the ditches is not set forth in the return, nor the outline of the low grounds delineated sufficiently, these may be supplied by the commissioners to whom the report will be sent back for that purpose.
Return and order set aside as to one ditch, and the petitioners to pay one-half of all costs; return sent back as to the other, to be amended.