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SECTION 3432. Vacancies in office of commissioners. 3433. Additional assessments.

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3434. Power of court over proceeding.

3435. At what terms proceeding may be heard.
3436. Proceedings legalized.

$3410. Short title and extent of application. This title 2 shall be known as the drainage law, but shall not 3 authorize the drainage of any ponds for the drainage of 4 which provision is now made by any special act of the 5 legislature, nor the opening of any ditch across any 6 door-yard, inclosed garden, orchard or vineyard, or the 7 removal of any tree therein, or of any building, without 8 the consent of the owner.

New.

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1 § 3411. Definitions. The term "swamp lands," when 2 used in this title, includes any bog, meadow, or other 3 low or wet lands. The term "ditch," when so used, 4 includes any drain, or other channel for the free passage 5 of water.

New.

1 $3412. Who may institute proceeding. Any person 2 owning or possessing any swamp lands within this state, 3 desirous of draining the same, and deeming it necessary 4 for that purpose, that a ditch for the free passage of 5 water should be opened through the lands of another 6 person, or deeming it necessary for the public health, 7 that any such swamp lands should be drained, may 8 institute a proceeding for such purpose.

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R. S., 2714, § 1, amended by L. 1886, ch. 636.

(Post, p. 1452a.)

§ 3413. How proceeding instituted. Such proceeding 2 shall be instituted by the presentation of a duly verified 3 petition to the county court of the county in which such 4 lands lie, or if in more than one county, to the supreme 5 court of the district where the lands are situated, or if 6 situated in two or more districts, to the supreme court

7 of any district in which any part of the lands are 8 situated.

9 Two or more applications under this title respecting 10 different lands or parcels within the same town or 11 incorporated village, may be made in one proceeding, 12 and by one petition. If two or more such proceedings 13 are begun, or two or more such petitions presented, 14 respecting different lands or parcels within the same 15 town or incorporated village, they may be, in the dis16 cretion of the court, consolidated, upon the application 17 of any party in interest, and thenceforth the proceeding 18 shall continue as if but one petition had been presented 19 or one proceeding commenced. Such petition may also 20 be presented by the supervisor of any town on behalf of 21 the town, or by the president of the board of trustees 22 of any incorporated village on behalf of the village. R. S., 2714, § 1, amended by L. 1886, ch. 636.

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Id., 2722, § 20, added by L. 1871, ch. 303.

(Post, pp. 1452a, 1461a-1462a.)

§ 3414. Contents of petition.- The petition shall set 2 forth the following facts:

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3 1. A general description of the lands to be drained. 2. The reasons why the drainage thereof is deemed 5 necessary.

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3. The names and places of residence of the owners of 7 all lands affected by the proceeding, so far as the same 8 can with reasonable diligence be ascertained. If the 9 name or place of residence of any owner can not be so 10 ascertained, that fact shall be stated, with a specific 11 statement of the extent of the inquiry which has been 12 made to ascertain such name or place of residence. 13 4. A demand for the appointment of three commis14 sioners to determine whether it is necessary that such 15 lands should be drained.

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R. S., 2714, § 1.

(Post, p. 1452a.)

§ 3415. Service of notice.- Notice of the presentation 2 of the petition must be served, either personally at least 3 eight days, or by mail, at least sixteen days before the 4 presentation thereof, upon the owners of all the lands

5 to be affected by the proceeding. If the owner or occu6 pant of any land affected by any proceeding taken pur7 suant to this title be unknown, and can not with 8 reasonable diligence be ascertained, or if the place 9 where such owner or occupant would probably receive 10 matter transmitted through the post-office can not with 11 reasonable diligence be ascertained, service of any 12 notice required by this title upon such owner or occu13 pant may be made by delivery to the clerk of the 14 county in which the land of such owner or occupant, or 15 a part thereof, is situated.

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R. S., 2724, § 22, added by L. 1886, ch. 636.
(Post, p. 1464a.)

§ 3416. When certificate of superintendent of public 2 works and state engineer must be obtained. If the lands 3 sought to be drained lie in two or more counties, no order 4 of the court shall be entered for the drainage thereof 5 under the provisions of this title, until the certificate of 6 the superintendent of public works and state engineer 7 and surveyor shall have been obtained and filed that 8 such drainage will not injuriously affect the navigation 9 of any of the canals of the state.

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R. S., 2724, added by L. 1886, ch. 636.
(Post, p. 1464a.)

$3417. Appointment of commissioners.-Upon presen2 tation of the petition, the court shall, if satisfied that 3 such drainage is necessary, appoint three freeholders or 4 householders of the county or counties wherein such 5 lands are situated, and not interested in such lands, or 6 in any part of them, and one of whom shall be a civil 7 engineer or surveyor, if there be one within such county 8 or counties, as commissioners to hear and determine the 9 following matters:

10 1. Whether it is necessary in order to drain such 11 lands, that a ditch for the free passage of water should 12 be opened through lands belonging to others.

13 2. Whether it is necessary for the public health that 14 such lands should be drained.

15 3. The amount of damage, if any, sustained by such 16 other land owners by reason of the opening of such ditch,

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4. To take such other and further steps with reference 18 to the proceeding, as are provided by law.

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R. S., 2715, § 2, amended by L. 1886, ch. 636.

(Post, pp. 1452a-1453a.)

$3418. Oath; bond and organization of commissioners. 2 Before entering upon the duties of their office, such com3 missioners shall make and file an oath with the county 4 clerk of the county in which they are appointed, or if 5 appointed by the supreme court, in the county where a 6 part of such lands are situated, as the court may direct, 7 that they will faithfully discharge the duties of such 8 commissioners according to the best of their knowledge 9 and ability. They shall, with all convenient speed, meet, 10 and organize as a board, by appointing one of their 11 number chairman and another treasurer of the commis12 sion. The treasurer shall collect and safely keep all 13 moneys to be collected or received by the com14 missioners, and pay out the same only upon the 15 orders signed by at least two of the commission16 ers. If the amount to be collected or received 17 by the treasurer exceeds five hundred dollars, 18 he shall give an undertaking with sufficient sureties, to 19 the people of the state, to be approved by the county 20 judge of the county in which such lands, or a part 21 thereof, are situated, or by a justice of the supreme 22 court, conditioned for the faithful performance of the 23 duties of his office, which shall be filed in the office of 24 the clerk of the county where the oath of the commis25 sioners is filed.

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R. S., 2715, § 2, amended by L. 1886, ch. 636.
(Post, p. 1453a.)

§ 3419. Proceedings of commissioners. Upon eight 2 days' notice to the petitioner and the owners of such lands, 3 the commissioners shall proceed by a personal view of 4 the lands, and by hearing such proofs as may be offered 5 by any party interested therein, to determine whether 6 it is necessary, in order to drain such lands, that a ditch 7 for the free passage of water shall be opened through 8 lands belonging to others than the petitioner, and

9 whether it is necessary for the public health that such 10 lands should be drained.

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The attendance of witnesses before the commissioners 12 in any proceeding under this title, may be compelled as 13 in civil actions in a court of record, upon the payment 14 of like fees. The commissioners shall reduce to writing 15 all proofs which may be taken by or before them.

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R. S., 2715, § 4.

Id, 2716, § 5.

(Post, pp. 1453a-1454a.)

§ 3420. Filing of determination. They shall file in the 2 office of the county clerk of the county where their. 3 oath of office is filed, their determination signed by 4 them, or a majority of them, if they do not all concur, 5 and the proofs and proceedings taken before them. If 6 the lands are situated in more than one county they 7 shall cause a duplicate of such determination to be 8 made and filed in the each of the other counties, in 9 which a part of such lands is situated. They shall give 10 notice of such filing to all whom it may concern by 11 publishing such notice at least twice in some newspaper 12 published in the town in which such lands or a part 13 thereof are situated. If there be no such newspaper 14 such notice shall be published in a newspaper published 15 at a place nearest to such lands. A copy of such notice 16 shall be served personally or by mail upon the petitioner 17 and each owner of such lands.

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R. S., 2715, § 5, amended by L. 1886, ch. 636.

(Post, p. 1454a.)

§ 3421. Appeal from determination of commissioners.2 Any person aggrieved by such determination may 3 appeal therefrom to the county court, by which such 4 commissioners were appointed, or to the supreme court. 5 if they were appointed by that court, by giving written 6 notice of appeal to the commissioners within ten days 7 after the last publication of the notice of filing of their 8 determination. The court to whcih such appeal is 9 taken, shall, thereupon, on motion of any party to the 10 proceeding, and on at least eight days' notice, hear and

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