TITLE 13. [534-539] TITLE 14. TITLE XIII. Of Proceedings, as for Contempts, to enforce civil Remedies, anci to proveci the Rights of Parties in civil Actions. [This title was repealed by L. 1880, ch. 245.] TITLE XIV. [540-544] TITLE 15. [545-547] Of Arbitrations. [This title was repealed by L. 1880, ch. 245.] TITLE XV. Of the Foreclosure of Mortgages by Advertisement. [This title was repealed by L. 1880, ch. 245.] TITLE 16. TITLE XVI. [548-550] Of Proceedings for the draining of Swamps, Marshes and other low Lands. Petition to court, for appointment of three com 71 N. Y., 14; 32 Hun, 450; 37 Hun, 24. [This entire title was amended by L. 1869, ch. 888, entitled "An act to amend title sixteen, chapter eight, part three of the Revised Statutes, relative to proceedings for the draining of swamps, marshes and other low or wet lands, and for draining farm lands." That portion of the Revised Statutes, as thus amended, and as amended by subsequent statutes, is here given. But the statute books, from 1869 to the present time, abound in special acts, altering particular provisions of this act, with respect to drainage in particular towns or counties, or making independent provisions for drainage in particular towns or counties, or with respect to particular lands. All such acts are, according to the plan of this work, omitted as local.] SECTION 1. Any person or persons owning or possessing any swamp, bog, meadow or other low or wet lands within this state, who shall be desirous to drain the same, and who shall deem it necesmissioners; sary in order thereto that a ditch or ditches, or other channels for 72 N. Y., 1; the free passage of water should be opened through lands belonging 315; 28 Hun, to another person or other persons, and any person or persons who shall deem it necessary for the public health that any such swamp, bog, meadow or other low or wet lands shall be drained, may present a petition, duly verified, to the county court of the county in which such lands lie, or, in case the same are situated in more than one county, to the supreme court, setting forth the fact, and the names of the owners of all lands to be affected by the proceedings, so far as the same can with reasonable diligence be ascertained, and praying for the appointment of three commissioners for the purposes and with the powers hereinafter set forth. Two or more applications under this section, respecting different lands or parcels within the same town or incorporated village, may be made by one proceeding or petition, or two or more such proceedings or petitions may, in the discretion of the court, upon the application of any party in interest, be consolidated, and one commission bet appointed for all, and in such case the proceedings shall continue thenceforth as if but one petition had been presented, or one proceed Several applica tions may be united. Court may consolidate proceed. ings. TITLE 16. ing commenced. The application provided for by this section may be made by the supervisor of any town on behalf of the town, or by Supervis the president or board of trustees of any incorporated village on be- lage pres half of said village. [Thus amended by L. 1886, ch. 636.] or or vilident may apply. appoint sioners; decide as age. health to § 2. The court to which such application is made, if satisfied that Court may such drainage is necessary, shall thereupon appoint and commission commisthree persons, who shall be freeholders or householders in the county qualificaor counties wherein the lands are situated, and who shall not be tions; to interested in said lands, nor in any of them, and one of whom shall to drainbe a civil engineer or surveyor, if there be one within the county, to Public hear and determine, first, whether it is necessary, in order to drain be consuch lands, that a ditch or ditches or other channels for the free passage of water should be opened through lands belonging to others; second, whether it is necessary for the public health that such lands should be drained, and to take such other and further steps with reference thereto as are hereinafter provided for. [Thus amended by L. 1886, ch. 636.] sidered. 5 Hun, 116;. NY. St. Rep., 486. 72 N. Y., 1;. oath of § 3. The said commissioners shall, before they enter upon the official duties of their office, make and file an oath with the county clerk of commis the county in which they are appointed, or in case they shall have sioners. been appointed by the supreme court, then in the county where a part of such lands are situated, in which the court shall direct the same to be filed, that they will faithfully discharge the duties of their office according to the best of their knowledge and ability. A Majority majority of the commissioners present at any meeting, of which all quorum. have notice, may exercise the powers of the commission. The commissioners shall, with all convenient speed, after qualifying as Organiza herein provided, meet and organize by appointing one of the tion. to form Duty of of board. members chairman and another treasurer of the commission. The treasurer shall collect and be custodian of all moneys to be collected treasurer or received by the commissioners under the provisions of this act, and shall pay out the same only upon the orders of the commission- His official ers, signed by at least two of said commissioners. The treasurer bond. shall, in all cases where the amount to be collected or received by him exceeds five hundred dollars, give a bond with sufficient sureties to the people of the state of New York, to be approved by the county judge of the county in which such lands or a part thereof are situated, or by a justice of the supreme court, conditioned for the faithful performance of the duties of his office, such bond to be filed in the office of the clerk of the county in which the oath of said commissioners is filed. [Thus amended by L. 1886, ch. 636.] sioners to § 4. The said commissioners shall, after notice to the petitioner Commis and the parties named in the petitions, in such manner as they shall view lands, order, proceed by personal view of lands and otherwise to determine &c. whether it is necessary, in order to drain such lands, that a ditch or ditches or other channels for the free passage of water shall be opened through lands belonging to others than the petitioner or petitioners, and also whether it is necessary for the public health that such lands shall be drained. 5 The said commissioners shall file in the office of the county Deter clerk for said county their determination signed by them (or by a to ne mination cessity for drainage, how filed Notice thereof, how pub lished and served. 116. TITLE 16. majority of them, if they do not all concur); and in case the lands are situated in more than one county, then the said commissioners shall cause a duplicate of their determination so made and filed as aforesaid to be made and filed in each of the other counties in which a part of such lands are situated, which duplicate shall be signed by them as aforesaid, and give notice of such filing to all whom it may concern, by publishing such notice at least two times in some newspaper published in a town in which such lands or a part thereof are situated; or if there be no such newspaper, then in a newspaper published at a place nearest to said lands respectively, and by mailing a copy of such notice directed to each person interested in such lands or any part thereof at his last known post-office address, who has not been personally served with such notice. Any party feeling aggrieved by such determination may appeal therefrom to the county court, or to the supreme court in the event the proceedings. were instituted or are pending in that court, by giving written notice of such appeal to said commissioners within ten days after the last publication of such notice. The said court to which such appeal is taken shall thereupon on motion of either party and on at least ten days' notice proceed to hear said appeal and to determine the same. The attendance of witnesses in any proceeding taken pursuant to the witnesses. provisions of this act may be compelled as in civil actions in such court with like fees. [Thus amended by L. 1886, ch. 636.] Appeals from determination. Hearing and decision thereon. Attend. ance of Commissioners, when to have survey and map made. Map to show lands to be drain ed, course · of ditch, etc. § 6. If it shall be adjudged and determined either by the said commissioners or by the court on appeal that for the benefit of the public health such ditches, drains or channels should be opened, or that such lands should be drained, it shall be their duty (unless the same 26 Hun, 319. shall be done by the petitioner and owners of such lands to their satisfaction) to cause an accurate survey of all the said lands to be made and a map thereof to be made on a scale of three hundred and thirty feet to one inch, showing all the lands that are proposed to be drained, the number of acres in each separate tract to be benefited by such drainage, the names of the owners or occupants thereof so far as can with due diligence be ascertained, and the relative levels of each tract, and the width, depth, slope of sides, shape and course of such ditch or ditches or channels for the passage of water as they shall determine to be necessary for the drainage of such lands, and for the purposes of this act such commissioners are empowered to employ a competent civil engineer or surveyor, or to authorize such commissioner as may be a civil engineer or surveyor to act as such, and to enter upon any and all the lands named in the petition or deemed necessary by such commissioners and survey the same and take levels thereof, and by themselves, their servants and agents to do all things necessary to the preparation for the construction and necessary for the construction and completion of all such ditches and channels for the passage of water, as they shall deem to be necessary for the complete drainage of the said swamps, bog, meadow or other low lands. [Thus amended by L. 1886, ch. 636.] Employ. ment of civil engineer. Right to enter up on lands for surveys. Map, how filled. § 7. The said commissioners shall, in the completion of the work, cause such map, or a duplicate thereof, certified by them, to be filed in the office of each county clerk in which their determination is by section five of this act required to be filed, which, or a duly authenti- TITLE 16. cated copy of which, may be used in evidence in any suit or proceeding in this state. [Thus amended by L. 1886, ch. 636.] How used in evidence. expenses mission paid. age, etc., on lands 35 Hun, 625. § 8. The said commissioners shall be paid for their services five Compendollars each, for each full day actually employed in their said duties. sation and They shall keep an account of all their expenses and of all the costs of comand expenses incurred in draining said lands, including all the costs ers, how and expenses incurred in any proceedings under this act and pre- Expense liminary or incident thereto, and any land damages as hereinafter of drain provided, all of which shall be a lien upon the property benefited; alien upand in case it shall be necessary to raise funds for construction of benefited. said ditches or channels, or land damages, before the assessment hereinafter provided for can be made and collected, the said commissioners are hereby empowered from time to time, with the approval of the court in which the proceeding was initiated or is May bor pending, to borrow so much money as may be necessary therefor, for con upon such evidence of indebtedness as they may deem proper, bear-structing ing interest at the rate of six per cent per annum, payable upon the etc. completion of such assessment and collection; and the interest accru- May issue ing thereon shall be assessed as other expenses for the said construc- of indebttion. Such evidences of indebtedness shall not be issued for less edness. than par, and shall be receivable in payment of such assessments. [Thus amended by L. 1886, ch. 636.] row money ditches, evidence sioners for. § 9. Any person whose land is taken in the construction of any Commis such ditch or channel shall be paid by said commissioners on or may ac quire title. before the commencement of the work the value of the land so 28 Hun, 14; taken, and such other injuries as the party may sustain: and if the 35 Hun, 625. commissioners cannot agree with any person upon the compensation and damages for making and maintaining forever such ditches or channels, the said commissioners shall proceed to acquire title to Proceedthe said easement upon and across the land of such person in the ings theremanner, so far as the same is applicable, prescribed by chapter one hundred and forty of the laws of eighteen hundred and fifty, entitled "An act to authorize the formation of railroad corporations, and to regulate the same," and the acts supplemental and amendatory thereto; and for the purpose of acquiring such easement under the statute last mentioned such commissioners are hereby granted the powers therein granted to a railroad corporation, so far as is necessary to acquire title to said easement and no further. The easements over and upon all lands included in or affected by the work determined upon by the commissioners may be obtained by one proceeding under this section. sioners to ment of costs, land § 10. The said commissioners shall, as soon as said costs, expenses, Commis land damages and compensations hereinbefore provided for, can be make statedetermined and ascertained, make a complete and detailed statement thereof, including all the claims of said commissioners, which state- damages, ment shall be duly verified by such commissioners, or by a majority 55 N. Y., of them. They shall also, in case they have decided that the public C., 227. health requires that such lands shall be drained, determine whether any, and if so, how much of the said sum shall be assessed to and 604; 3 T. & tion, &c. Towns, vil lages, &c., when to bear part of expense. TITLE 16. paid by the incorporated village or villages, town or towns, or county, To appor. in which the lands are situated, and they shall apportion all of the said sum, except so much thereof as they shall determine, shall be paid by said village or villages, town or towns, or county, among the several owners or occupants of such of the lands included in the said map, or adjacent thereto, as they shall deem to be directly benefited by the said drainage, in proportion to the amount of benefit which each receives therefrom; and the several amounts so adjudged shall constitute liens upon the respective tracts until paid or otherwise removed, with interest from the service of notice on such decision of the said commissioners, as hereinafter provided. Provided, that no portion of the cost, expenses, land damages and compensation provided for in and by said act, as hereby amended, shall be assessed to or be paid by any incorporated village or villages, town or towns, or county, in which the lands so to be drained shall be situated, unless a majority of the board of trustees in case of a village, a majority of the town board in case of a town, and a majority of the board of supervisors in case of a county, shall have joined in the petition reStatement quired by the first section of said act, as hereby amended. The said commissioners shall file in each clerk's office, in which their determination of the necessity of draining such lands, or duplicate thereof, as provided by section five of this act, as hereby amended, is required to be filed, a copy of the said statement, and of the said determination as to the village or town or county, in case there be any such, and of the said apportionment certified by them, which or a duly authenticated copy of which may be received in evidence in any suit or proceeding in this state. They shall also cause notice, written or printed, to be given to each person whose lands are aspersons as sessed by them, to pay any part of said sum; and also to the supervisor of any town or the president of any village, or the chairman of the board of supervisors of any county that may be assessed by them, which notice shall state the time and place of filing such statement and determination. The said notice shall be served personally upon such supervisor, president or chairman, and also upon each person whose lands are so assessed when he can with due diligence be found in a county in which such lands or a part thereof are situated; and when not sq found, then by delivering such notice to some person of reasonable age and discretion, residing upon said premises, directed to the owner or occupant thereof, or, if no such person be found residing upon said premises, and such owner or occupant be not found, then by depositing such notice in the postoffice duly enveloped and directed to such owner or occupant at his last known place of residence with the postage prepaid. A copy of such notice with the affidavit of the person who served the same that he delivered the original to the person to whom it was addressed Appeals to shall be evidence of such service. Any person deeming himself aggrieved thereby, or any such officer deeming his village or town or county aggrieved, may appeal from the decision of the said com3 N. Y. St. missioners to the court in which such proceedings were initiated or are pending, for the correction of such assessment, provided he serves upon said commissioners notice of said appeal within ten days after the service upon him of the notice of filing such state Notice to local officials and to assessments. Notice, how served. Proof of service. court from Rep., 486. |