CHAPTER 228 - DITCHES AND DRAINS--SUSSEX COUNTY

AN ACT WITH REFERENCE TO DITCHES AND DRAINS IN SUSSEX COUNTY.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. That from and after the passage of this Act, all ditches or drain companies or corporation providing for the care and maintenance of ditches or drains in Sussex County with a three foot bottom or more, upon request of the Levy Court. of Sussex County, shall turn over to the Levy Court of Sussex County the care and maintenance of any or all such ditches in Sussex County which may come under its supervision, the said Levy Court of Sussex County hereafter to have full charge of and be responsible for, the care and maintenance of any and all ditches hereby placed under their control as aforesaid.

No ditch or drain company or corporation shall hereafter be permitted to make any assessment or levy any taxes with reference to the said ditches or drains placed under the control and supervision of the Levy Court of Sussex County as above, but shall forthwith relinquish all right, title or interest therein.

Section 2. The Levy Court of Sussex County shall have power and authority to lay out drainage districts in order to carry into effect the provisions of this Act.

Section 3. The Court of General Sessions in Sussex County shall have jurisdiction to lay out ditches, and also to widen, change and vacate the same in all cases.

The Resident Associate Judge in Sussex County also shall have jurisdiction to lay out ditches and to widen, change or vacate the same.

Proceeding in this behalf shall be carried on exclusively before the said Court or before the said Judge before whom the same shall be initiated, unless otherwise specially directed by the order of said Court or said Judge.

Section 4. Before any property, ground, sand, earth, gravel, stone or other ditch materials shall be taken or occupied for the purpose of extending, widening, changing, vacating, straightening, laying out or opening, building, improving or repairing any ditch or drain under the provisions of Section 4 to Section 12 inclusive of this Act, the owner or owners of such property, ground or material shall be paid or tendered such damages as they shall respectively be entitled to receive, which damages shall be assessed as follows, viz:

Five or more freeholders of the County, or the President of the Levy Court of the County upon resolution of said Court, may apply to the Court of General Sessions, or to the Resident Judge of the County where the property, ground or road materials desired to be taken are located, first giving all parties in interest or their legal representatives at least five days' notice in writing of the intended application, if they be within the State and under no legal disability to receive the same; and if any owner or party in interest be unknown, or without the State, or under legal disability to receive such notice, and having no legal representatives within the State, then such notice shall be published in some newspaper of the County in which such property ground or material proposed to be taken is located, at least five days previous to the intended application; and the said Court or the said Judge, as the case may be, shall appoint five judicious and impartial freeholders of the County to view the premises and material and make return on a day fixed by said Court or by said Judge, as the case may be, authorizing the freeholders, so appointed, to employ if necessary a surveyor, and directing them.

In an order on a petition for a new ditch or a drain, that if they judge such ditch or drain necessary they shall lay it out in the best way, having respect to the nature of the ground, the distance and other circumstances of public or private convenience or detriment, and shall make a map of such ditch or drain showing its courses and distances, the woodland and cleared land through which it passes, and other proper notes, and shall compute the cost of opening and making such ditch or drain and shall make said map and computation of costs and also their determination that such ditch or drain is needed for public convenience, part of their return.

Second: In an order made on a petition for changing the course or width of a ditch or drain, the direction shall be that, if they judge the changes asked for or any change of like effect proper, then they shall lay out such ditch or drain as will produce such change in the best way, having respect as aforesaid; and shall make a map as aforesaid, showing the change, and shall determine what part of the old ditch or drain shall be vacated on opening the new, and who shall enclose the same, all of which shall be set out in the return.

Third: In an order made on a petition for vacating a drain or ditch or any part thereof, the direction shall be that, if they judge such ditch or drain or any part of it to be unnecessary, and that it ought to be vacated, they shall determine who shall enclose the same or any part thereof, and what portion of the costs such persons ought to pay respectively, all of which shall be set out in the return.

Fourth: In an order made out on a petition for taking any sand, earth, gravel, stone or other material to be used in building or repairing a ditch or drain, the direction shall be that, if they judge such material necessary for the digging of such ditch or drain, they shall describe the ground from which said material may be taken, and shall determine the terms upon which and the time within such material may be taken.

Fifth: In all cases they shall assess the damages which the owner or owners or other parties in interest will sustain by reason of such ditch or drain, or the use of such ditch or drain, considering all circumstances of benefit or injury, which may accrue to such owner or other party in interest therefrom.

Sixth: In an order made out on a petition for a temporary right of way to be used in conjunction with digging a ditch or drain, the direction shall be that, if they judge such right of way necessary, they shall lay out the same, and shall make a map as aforesaid, showing such right of way, and shall determine the terms upon which said right of way shall be returned to the owner thereof.

The freeholders named in such commission shall be first sworn or affirmed as in said commission shall be directed, and the return of such commissioners shall be made to the said Court or to the said Judge, as the case may be, who shall file the same in the office of the Clerk of the Peace.

Section 5. In an order made on a petition for changing the course or width of a ditch or drain if the commission judge the changes or widening proper they shall then cause notice thereof to be sent by mail, a record of which shall be preserved, to all persons owning property which is crossed or which abutts upon and is contiguous to such ditch or drain, and any such owner or the legal representative of any such owner, who after such notice has been given, shall construct any building within the right of way of any such ditch or drain as exists or is proposed shall be allowed no compensation for such building, upon the condemnation thereof, or the land upon which it is situated, unless such owner shall serve written notice upon the Levy Court within three months from the time that he receives such notice that he claims damages by reason of the provisions of this paragraph, in which event the said Levy Court may apply, as provided herein for the ascertainment of damages in other matters, for the ascertainment of the damages so claimed by such owner.

Section 6. With respect to the laying out of new ditches or drains, or the widening, changing or straightening of ditches or drains in Sussex County, notice in writing, signed by the persons interested therein, or someone or more of them, shall be delivered to the President of the Levy Court for Sussex County at least ten (10) days before the day fixed for the presentation of the petition to the Resident Judge, in which notice there shall be given a description of the ditch or drain to be laid out, or widened, or changed, or straightened, or the part thereof, as the case may be, with the points of beginning and termination, so that it may be readily identified, and the time and place of the presentation of the petition to said Judge. Thereupon, the Levy Court, with the advice and assistance of the County Engineer, shall make or cause to be made inquiry into the matter, to determine the necessity therefor, the probable benefit to the public accruing therefrom and the probable cost thereof; and the Levy Court shall make its report in writing to said Judge at the time of the presentation of the petition, including in said report all pertinent facts as disclosed by the inquiry, and their recommendation considering the necessity, probable benefit and cost.

If the recommendation of the Levy Court in respect of the matter contained in said petition shall be adverse to the prayer of the petition, the said Judge is authorized and empowered to refuse the prayer thereof, and to decline to appoint the Commission of Freeholders as provided in this Chapter.

Section 7. In all cases where existing ditches or drains in Sussex County have been superseded, or their necessity has ceased to exist, by improved ditches or drains constructed by the State Highway Department, by the Levy Court of Sussex County, or by the said Department, and said County, or by any ditch company or corporation whose care and maintenance of such ditch or drain have been turned over to the Levy Court of Sussex County under the provisions of Section one of this Act, the Levy Court of Sussex County shall have power to cause to be vacated or abandoned such existing ditches or drains or parts thereof, and to determine who shall enclose the same. The procedure, therefor, shall be as follows:

Whenever the necessity for the continuation of an existing ditch or drain in Sussex County, or a portion thereof, shall cease by reason of the construction of an improved ditch or drain, as hereinbefore stated, the Levy Court of Sussex County shall by resolution fix a time and place, at which persons interested may be heard with respect to the vacation or abandonment thereof. A copy of said resolution shall be published in a newspaper of Sussex County in at least two (2) issues thereof, prior to the date fixed for said hearing, and likewise, a copy of said resolution shall be sent by mail addressed to the owners of land touching upon said ditch or drain, or part or portion thereof, at least ten (10) days before the day fixed for said hearing. The said copies shall be addressed to the owners at their last known post office addresses, if such can be ascertained by reasonable inquiry, otherwise the publication of said resolutions shall be deemed to be sufficient.

The Levy Court shall on the day and at the time fixed, proceed to hear persons interested, and shall consider any objection to the vacation or abandonment of said ditch or drain, or part thereof, and shall determine concerning the same. If the Levy Court shall determine that no necessity exists for continuing the said ditch or drain, or part thereof, they may order the same to be vacated or abandoned and may determine who shall enclose the same. The order of the Levy Court shall be entered in the Ditch or Drain Books or Records of Sussex County, together with a description of the ditch or drain or that part thereof, ordered to be vacated or abandoned, and thereupon the said ditch or drain, or part thereof, shall cease to exist as a ditch or drain of Sussex County, and the persons entitled to enclose the same may proceed to use and occupy the abandoned ditch or drain, or part thereof.

The provisions of Section 6 and 7 shall not apply to any ditch or drain laid out by special act of the General Assembly.

Section 8. The return upon one commission shall not be conclusive, but upon application by any party in interest, or by the President of the Levy Court of the County upon resolution of said Court within fifteen days after the filing of such return, said Court or the said Judge, as the case may be, shall issue a commission of review appointing five other freeholders as aforesaid with like instructions as were contained in the first commission, provided that, if a review be granted upon the application of a person or persons interested, the review shall extend only to the assessment of damages made in respect to the person or persons making such application. If the return to a commission of review varies in the damages assessed from the return to the original commission, the said Court or the said Judge, as the case may be, shall grant a second commission of review upon the application of the President of the Levy Court of the County upon resolution of said Court, or of any person interested in the return to the commission review, within ten days after the filing of such return. If a review be not applied for in due time, the return to the original commission shall be conclusive as to the amount of damages. If the return to any two commissions correspond as to the amount of damages, such amount shall be conclusive, but if there be more than one return and none inclusive under the foregoing provisions, the said Court or the said Judge, as the case may be, shall confirm such one of them as he shall deem most just, and the return so confirmed shall be conclusive.

The said Court or the said Judge, as the case may be, may set aside a return to the Commission for gross inequality or inequity in which case he shall issue another commission in its place, and the said Court or the said Judge, as the case may be, shall have power to fill any vacancy in a commission. There shall be allowed to the Commissioners for their services three dollars per day.

Section 9. The amount of damages being so ascertained, the Levy Court of the County, the duly authorized officers of the State, or any person interested, may pay or tender the same to the person or persons entitled thereto, within two calendar months after the same shall have been finally ascertained, or, if the person or persons so entitled reside out of or are absent from the County during all or part of said period of two months, then the same may be deposited to his or her credit in the Farmers Bank of Delaware, at the County seat of the County wherein such proceedings are instituted, within said time, and thereupon the said property, ground or material may be taken or occupied for the use aforesaid.

Section 10. Whenever damages shall have been assessed to any owner or owners of property for the extending, widening, changing, vacating, straightening or laying out or opening, building improving or repairing of any ditch or drain or for any ditch or drain material, and the Levy Court of the County, duly authorized officers of the State, or persons interested, shall omit or neglect to pay or tender the amount of ascertained damages to the person or persons entitled to the same, or to deposit the same in the manner and within the time herein provided for such payment or tender or deposit, no further application or proceeding shall be made or had for the extending, widening, changing, vacating, straightening, laying out or opening of said ditch or drain through or upon the same land or premises for which said damages were assessed, until after the expiration of two years from and after the said assessment.

Section 11. In addition to the compensation of said commissioners provided in Section 4 of this Chapter, they shall be entitled to mileage at the rate of three cents a mile going and returning. The said Court or the said Judge, as the case shall be, shall fix the compensation of all persons properly employed as surveyors, chain carriers, axemen and target bearers, and all other persons necessary to the economical execution of any order for laying out, widening, changing or vacating ditch or drain, including the board and accommodation of persons properly employed in and about the execution of said work.

Section 12. The costs of proceedings for laying out, widening or changing a ditch or drain, and the damages settled, shall be paid by the Levy Court of the County; provided, that if Commissioners appointed by order of the Court shall not lay out a ditch or drain, the costs of proceedings shall be paid by the person or persons petitioning for same; and if such Commissioners shall lay out a ditch or drain, then the person or persons making application for a review or any further order of Court shall pay the costs of the proceeding immediately preceding such application, before any such order shall be granted; and no costs paid by the persons applying for a review shall be reimbursed to them by the Levy Court. The costs of proceedings for vacating a ditch or drain shall be paid by the petitioners, unless the road shall be vacated, and in that case by the persons authorized by the return to enclose it, and in the proportions fixed by the return, before such enclosure.

Section 13. The Levy Court of Sussex County prior to the thirtieth day of April in each year, shall, upon due inquiry and investigation, estimate the amount of money which will be required for the current year to carry into effect the purpose of this Act, dividing and apportioning such estimate for and among the following:

1. For the general repair and maintenance of ditches or drains to be known as the "General Ditch Fund".

2. For the special or permanent improvement of ditches or drains, to be known as the "special ditch improvement fund".

On the last Tuesday of April in each year, the said Levy Court shall lay such an additional rate upon the assessment lists of said County, according to a certain rate upon One Hundred Dollars ($100.00), as will by estimation produce the aggregate of the several sums so as aforesaid found to be necessary to be raised, and shall apportion to each of the above divisions or funds a certain per centum of the total amount to be raised so that a fund will be produced equal to the amount estimated to be required for each of the needs and purposes above specified.

Section 14. The Levy Court of Sussex County is hereby specifically authorized to levy upon the assessable property of the taxables of said county a tax for the special or permanent improvement of ditches or drains of Sussex County, providing, nevertheless that said assessment in this Section and Section 13 when added to all other assessments made in Sussex County shall not exceed the rate of assessment fixed by law.

Section 15. The ditches or drains of Sussex County shall be under the management and control of the Levy Court of Sussex County in the manner following:

The ditch or drain work shall be in two classes; (a) general repair and maintenance of ditches and drains, (b) special or permanent improvement of ditches and drains.

The cost of the ditch and drain work of the first class shall be paid for out of the funds derived from the taxes levied for that purpose. The funds so derived shall be allocated among the several representative districts in proportion as the mileage of county ditches and drains in each such districts bears to the total mileage of county ditches and drains in Sussex County.

Section 16. The County Engineer of Sussex County shall, on or before the first day of April in each year, make a general inspection of the ditches or drains in each ditch district of Sussex County, and shall make a detailed written report to the Levy Court of the work necessary to be done in each district in the current year, accompanied by proper plans and specifications, where plans and specification are necessary.

The Levy Court shall consider said report and plans of the Engineer for each ditch district, and may accept the same or modify or reject them, but such report and plans shall not be rejected or modified except by the majority vote of the members of the Levy Court, and unless rejected or modified, by such majority vote, it shall be the duty of the Engineer to carry into effect the ditch work for each ditch district as planned by him and submitted to the Levy Court. The ditch work may be carried on either under the direction of the Engineer and the supervisors to be appointed by him, or said work may be done under contract as the Levy Court may determine, but if such work shall be let out to contract, no payment therefor shall be made unless approved in writing by the Engineer.

The Engineer shall furnish the Levy Court with detailed plans and specifications, and all such contracts shall be awarded to the lowest responsible bidder.

The Levy Court is empowered to secure the proper performance of all contracts by requiring bond with security, and all such bonds shall be in the name of the State of Delaware.

The Engineer shall appoint each year a suitable person in each drainage district to be supervisor of ditches and drains for such district, and he shall report in writing the names and addresses of such persons, selected by him as supervisors, to the Levy Court immediately upon their selection. Supervisors shall be paid a daily wage for each days labor performed by them as shall be determined by the Levy Court, and they shall be under the direction and control of the Engineer and subject to dismissal by him at any time.

Twice during each month the Engineer shall present to the Levy Court a detailed statement of the work done in each district, the names of the persons employed, the hours of labor performed by each, and the teams and wagons furnished by each person, and the total amount due each person so employed or so furnishing teams or wagons. The statement shall be under the hand of the supervisor under whose direction the work has been done, and shall be approved by the Engineer. The Levy Court shall, after approval thereof by the County Comptroller, and after investigation of the same, draw warrants in the usual form for the payment of the amounts found to be due.

The Levy Court shall determine the amount to be paid for ditch work for each team furnished, which rate may differ in the several ditch districts.

The supervisors shall engage upon no work except as directed by the Engineer, save in case of urgent necessity to make a ditch passable, and in such case shall at once report in writing to the Engineer the work performed and an itemized account of expenditures thereon.

All materials, tools, implements and supplies shall be purchased by the Levy Court upon the advice of the Engineer, and the Engineer shall from time to time present to the Levy Court a list of the materials, tools, implements, machinery and supplies needed by him in the proper discharge of his duties.

The cost of all tools, machinery, implements and supplies shall be paid for by the Levy Court of Sussex County.

The expenses of the Engineer in supervising the ditch work shall be presented in writing to the Levy Court each month, duly itemized and verified, and the Levy Court shall draw a warrant therefor, after approval by the Comptroller. The Engineer shall have power, with the consent of the Levy Court, to employ a surveyor or surveyors, if necessary, for the proper discharge of his duties.

All ditch work shall cease upon the exhaustion of the funds available therefor in each year, and no contract or contracts shall be made in an amount exceeding the funds available for ditch work.

The Levy Court shall have the power to locate or cause to be located, the courses and limits of ditches, and to prevent encroachments thereon, and to recover damages for any injury thereto.

Section 17. The Levy Court of Sussex County, the County Engineer, the Supervisors so appointed, Employees of the Levy Court shall have the right of entering upon the lands at all times for construction and maintenance purposes.

Section 18. That from and after the passage of this Act all Acts or sections of the Revised Statutes, together with any amendments to the same are hereby repealed, in so far as they may be inconsistent with the provisions hereof.

Approved April 18, 1935.