ties of commis

sons asking to be heard, and he may re-examine such water course Powers and daor line of proposed ditch, or drain, and for that purpose shall have sioner relativo power to enter upon any lands in his township, and may also ad- to application. journ such examination and hearing from time to time as to him shall seem proper, by publicly announcing the time and place to which such adjournment is made.

for costs, etc.,

sary.

(1781) SEC. 4. If said drain commissioner, after hearing, or if the Applicants liable jury or commissioners hereinafter provided for, shall decide that it is when drain denot necessary to establish and open such water course, or to locate cided not neces and construct such ditch or drain through the lands mentioned in the application, then said applicant or applicants shall be liable to said drain commissioner for all just and legal costs, charges, and expenses, and if not paid on demand, may be collected in the same manner as provided in section two of this act: Provided, That the Proviso-hearsaid drain commissioner may, after receiving the application and of applica bond, or security mentioned in section two of this act, proceed to amination of appoint a time and place for the hearing of such application, and to give the required notice before making a personal examination of the line mentioned therein.

tion

line.

case drain is

ry.

when owners of

and do not release claim for

compensation.

(1782.) SEC. 5. After such examination and hearing, if said Proceedings in drain commissioner does not decide adversely to the application, found necessahe shall cause a survey and measurement of the line of the proposed water-course, ditch, or drain, to be made, if he deems it necessary; he shall establish the commencement and terminus of said water-course, ditch or drain; he shall determine the route, width, length, and average depth thereof; and if all the owners of the Proceedings land through which said water-course, ditch, or drain is to run shall not convey the necessary land to the county and release all claim for damages or compensation, the drain commissioners shall immediately make a list of twenty-four disinterested freeholders residing in the vicinity of such land, and in the same county, from which said commissioner shall strike off the names of six, and the owners of such land six; but if such owners do not appear at such examination and hearing, or appearing, refuse or neglect to act, then said drain commissioner shall strike off other six, and the remaining twelve shall be deemed elected; and said commissioner Sheriff or constashall at once issue a venire signed by him, directed to the sheriff, ble to summon or any constable of said county, commanding him to summon said jurors, naming them, to be and appear before him forthwith, or at such other time as he shall direct, not more than three days from the date of said venire, to serve as jurors to decide as to the necessity of establishing and opening the proposed water-course and taking the land therefor; or as to the necessity of locating and constructing such ditch or drain and taking the land therefor (as the case may be), and to determine the amount of damage sustained by any erson or persons owning or interested in any of the lands through which such water-course, ditch, or drain is to pass. If all the jurors shall not appear within one hour of the time of appearance named in said venire, said drain commissioner shall direct the sheriff or constable in attendance, if any, otherwise some other officer or disinterested person, to summon talesmen to

jurors.

Oath of jurors

of jury when found necessary.

tion of watercourse, etc.

complete the panel. It is hereby made the duty of such sheriff, constable, or other officer or person to perform the duties required of him by this act. When the panel shall be full said drain commissioner shall administer unto the jury an oath well and truly to examine and determine the necessity of establishing and opening such water-course and the necessity of taking the land therefor, or the necessity of locating and constructing such ditch or drain, and the necessity of taking the land therefor, as the case may be, said Jury to examine jury shall thereupon proceed to examine the line of the proposed line of ditch, etc. water-course, ditch, or drain described in the application. If the Determination jurors be of the opinion that it is necessary for the good of the public health, as well as a benefit to the land in the vicinity thereof, to take such land and to establish and open such water-course, or to locate and construct such ditch or drain, they shall so deterEvidence of loca- mine; such determination, when reduced to writing and signed by the jurors, shall be prima facie evidence of the establishment or location of such water-course, ditch, or drain, and shall be deemed a sufficient conveyance to vest the fee of the lands necessary for such water-course, ditch, or drain in the county in which it is situated, in trust to, and for the uses and purposes of drainage, and for no other use or purpose whatever, and such determination may be acknowledged before some officer authorized to take acknowledgments of deeds, and recorded in the office of the register of deeds in the Assessment of County where such lands lie; they shall proceed to assess the damages damages. which any person or persons may sustain by reason thereof, and shall certify in writing their doings, and the amount of dam ges so assessed and payable to each individual, and deliver the certificate to the drain commissioner. If said jury cannot agree, another jury may be chosen and sworn in like manner as the first, on the same or some other day, to be appointed by said commissioner, who shall act and make return as aforesaid, and successive jurors may be chosen, sworn, and act as aforesaid, until they shall agree, if the parties interested desire it; or the said drain commissioner may then, or judge of probate in the first instance, apply to the probate court of his county for of commission- the appointment of three commissioners to act in place of said jury, who shall take the same oath and perform the same duties prescribed above for said jury: Provide, That if said jury or commissioners shall certify in their return that it is not necessary to establish such water-course, or to locate and construct such ditch, or drain, on or near the line mentioned in the application, no successive jury or commissioners shall be chosen within one year thereafter; but if said jury or commissioners shall certify that a watercourse, ditch, or drain is necessary under the application, on some other line, then the drain commissioner, upon renewing the bond or security as provided in the second section of this act, may proceed to establish the water-course, or locate the ditch or drain on the line proposed by the jury or commissioners; and another jury or commissioners may be called or appointed as herein before provided.

Proceedings when jury cannot agree.

Application to

for appointment

ers.

Proviso.

(1783.) SEC. 6. I' the jury or commissioners shall return that it is necessary to establish such water-course or locate such ditch or drain,

found necessary,

same.

missioner and

and necessary to take the land therefor, and shall award the just When ditch, etc. damag s or compensation therefor. to be paid to the owners of said commissioner to land, said drain commissioner shall, as soon thereafter as may be, apportion the proceed to apportion the opening of such water-course, or the construction of such ditch or drain, to each and every parcel of land to be drained or benefited thereby, in such proportion as he shall deem just and right; describing such parts so assigned to each parcel of land by division stakes, to be placed at the commencement of each part or portion, with the number of the same marked thereon on the side designated by the number; when such water-course, ditch or drain, will benefit the highway as well as the public health, said drain commissioner shall assign the opening or construction thereof, of such part or parts as seem to him just, to the township to which such highway belongs or in which it is situated. If such highway is on the line between townships. then such part or parts, with the consent of the drain commissioner of the other township, or townships, may be assigned in equitable proportion between the townships. He shall make an official certificate of his doings Official certifshowing the establishment of such water-course or location of such cats of comditch or drain; also the courses, distances, depth, width, and termin- where filed. ation of the same, and further showing what portions of such watercourse, ditch. or drain he has apportioned to be opened and maintained by each piece or tract of land to be drained or benefited thereby, as well as the portion assigned to the township, and the length and number of such portion, which certificate, together with all other papers in the case, shall be attached together and filed in the office of the clerk of the township in which such water-course ditch, or drain is to be opened, to be preserved as the records of such township for the benefit of those interested; and such clerk Entry to be shall make an entry, in a book kept for that purpose, of papers so a book for that filed, showing the kind of paper and date of entry, and showing in purpose. what part of such township such water-course is established, or ditch or drain located, and name thereof, which entry shall be prima facie evidence of the existence of such papers at the date of such entry, and of their having been duly filed at such date; and Award, etc., lien such award and apportionment of labor as aforesaid when duly filed as aforesaid, sball thenceforth be a lien upon each piece or tract of land so drained and benefited, and an obligation against the owners thereof: Provided, That in case of application for clearing, or Proviso. straightening any natural water-course, it shall not be necessary to level and survey the same, but simply to divide the water-course into sections.

made of same t

upon land.

(1785.) SEC. 8. When such water-course is established, ditch or drain When ditch, etc., shall be opened. located. and apportionment for the opening or construction thereof made, and papers fi ed as provided in the foregoing section, by agreement of parties or by act of the commissioner, it shall be the duty of each owner of the land upon which such apportionment is made, to fully open such portion of such water-course, ditch or drain, as has been apportioned to his land on or before the twen tieth day of October next after such papers are filed; and in all cases parties shall have at least three months to complete such

When commis- work.

sioner to contract for construction.

Proviso.

Apportionment of costs, etc.

of damage.

Proviso.

If any portion of such water-course, ditch or drain is not opened by the time provided, said drain commissioner shall, as soon as practicable, cause the same to be done, either by public letting to the lowest responsible bidder or private contract: Provided. That the aggregate amount of said private contract shall not exceed the sum of twenty-five dollars, on such reasonable terms as he may be able to procure; and he shall give to the persons who shall have performed their contracts thereon, certificates showing the amount and value of the labor performed by such persons. on each contract respectively, with a description of the land against which such labor was performed.

(1786.) SEC. 9. Said drain commissioner shall apportion all the just fees, costs, and expenses (which may include prospective costs and expenses) of all the officers and persons engaged in any manner in establishing such water-course, or locating such ditch or drain, upon the lands drained or benefited thereby, as well as upon the township, in such proportion as shall to him seem just; he Apportionment shall also, in the same manner, apportion the damage or compensation awarded by the jury or commissioners of appraisal, to certain of the owners of the lands through which such water-course, ditch, or drain runs, except that the lands to the owner of which such damage or compensation is to be paid, shall not be liable to the apportionment of any part of such damage or compensation: Provided. If such owner or owners are benefited by such watercourse, ditch, or drain, then such benefits shall be taken into consideration by the jury or commissioners of appraisal, and by them deducted from the damage or compensation; and he shall apportion all the fes, costs, and the value of the labor of opening any portion of such water-course, ditch, or drain caused to be opened by him under the provisions of the foregoing section, to the land. as well as upon the township, to which the opening of such portion was apportioned; and he shall make a statement in writing, signed by him, showing his apportionment to each tract of land, of the fees, costs, and expenses of officers and other persons in establishing such water-course or locating such ditch or drain; also of the damage or compensation to be paid to owners of land as aforesaid, and of lees, costs, and value of labor of opening each and every portion of such water-course. ditch, or drain, caused to be opened by said drain commissioner as afores tid, showing further the amount out of such apportionments to be paid to each and every person entitled thereto; and where compensation is to be paid to the owner of land through which such water-course, ditch, or drain is to run, and the name of such [owner] is known, then name him as the owner of such land, which statement shall be subscribed and sworn to by said drain commissioner, before the township clerk or some other officer authorized to administer oaths, and shall be filed in the office of the township clerk on or before the tenth day of November next, after such water-cours is established, or ditch or drain is located: Provided, That if three months shall not have elapsed from the time of the apportionment of the labor for opening such water-course, or for the construction of such ditch or

Statement show ment and where

ing apportion

filed.

Proviso.

drain, to the twentieth day of October next following, or the contract for performing the same is not let by the said tenth day of November, then such statement or any part thereof may be filed on or before the tenth day of November next thereafter.

not paid, to be

certain other

(1787.) SEC. 10. If the owners of land upon which such apportion- Apportionment ment is made, or agreed to be made, do not pay to the township treas- assessed and colurer the apportionment upon their lands respectively, and file a lected same as receipt therefor with the township clerk, on or before the fifteenth taxes. day of November next after the filing of such statement, the township clerk shall certify to the supervisor, on or before the twentieth day of November, all such apportionments which remain unpaid. The supervisor shall levy such apportionments upon the said lands upon which the apportionments are made, placing the tax in a column entitled "ditch tax," in the same manner that delinquent highway taxes are required by law to be levied; he shall at the same time, in the same manner as township taxes are required by law to be levied, levy all sums apportioned to the township, upon the entire taxable property of the township, placing the tax in the column entitled "ditch tax." The several amounts so levied shall be collected by the township treasurer, in the same manner as other taxes, and when collected shall be received into the township treasury, together with the money paid by the owners of the land as aforesaid; and shall be credited to the particular ditch Disposition of fund to which it belongs, and shall be paid out only to the person or persons entitled to receive the same, on order of the township board. In case of failure to levy such taxes, or any part thereof, May be levied within the time and in the manner herein provided, it shall be ond year. lawful to levy each sum remaining unpaid, and collect the same next year, with the same force and effect as the same might or could have been the first year.

same.

and collected sec

ditch taxes.

State and county

(1788.) SEC. 11. The township treasurer shall retain in his hands Township treasthe amount of the several ditch taxes as specified in his warrant. If urer to retain any of the taxes authorized to be levied under the provisions of Unpaid taxes rethis act shall remain unpaid, and the township treasurer shall be turned same as unable to collect the same from the owner or occupant of the taxes. premises assessed, he shall make return at the same time and manner as lands are returned for State and county taxes. The land so returned shall be subject to sale and redemption the same as lands returned for other taxes.

natural water

(1789.) SEC. 12. The drain commissioner shall have power, upon Commissioner application there for, to clear, open, or to straighten any natural may clear, etc., water-course in his township; to locate a tile, or other underground course. drain, and construct the same; or partly tile, or underground, and May locate tile partly open, as he may deem proper. He shall proceed in the same drain, etc. manner as required by this act to establish water-courses and locate ditches or drains: Provided. That the notice required by the Proviso. Becond section of this act, shall state distinctly the kind of drain proposed to be located and constructed.

(1790.) SEC. 13. Water-courses may be established, or ditches or Ditches, etc., drains located along, within the 1.mits of, or across any public may be estab road; and when any shall be so established, located, and opened public roads.

lished across