CHAPTER 274

NEWPORT

AN ACT TO AMEND CHAPTER 195, VOLUME 24, LAWS OF DELAWARE, BEING AN ACT ENTITLED "AN ACT TO RE-INCORPORATE THE TOWN OF NEWPORT" BY INCREASING AND ENLARGING THE CORPORATE POWERS OF SAID TOWN BY GRANTING TO THE TOWN COMMISSIONERS THE POWER TO LIEN REAL ESTATE FOR STREET AND ROAD CONSTRUCTION, PAVING AND CURBS.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met (two-thirds of all the members elected to each Branch thereof concurring therein):

Section 1. That Sections 6, 7 and 8 of Chapter 195, Volume 24, Laws of Delaware, being an Act entitled "An Act to reincorporate the Town of Newport", be and the same are hereby amended by striking out Sections 6, 7 and 8 thereof and inserting and enacting in lieu thereof the following:

Section 6. That the Commissioners for the time being, or a majority of them, shall have the superintendence and oversight of all roads and streets, lanes, alleys, curbs and gutters now open or hereafter to be opened, and shall have power and authority to cause the streets, lanes, alleys, bridges and gutters in said town to be paved, repaired, regulated, supported, removed and amended in any manner they may deem most proper for the convenience and interest of the citizens of said town. That the commissioners for the time being, or a majority of them, shall have the power, upon the application of five or more citizens of said town, by petition to them for that purpose, to reopen all streets that have previously been opened, to locate, lay out and open and pave any new street or streets which five or more citizens of said town may desire to be located and laid out and opened, allowing to the persons respectively through or over whose grounds such new street or streets may run such compensation or damages therefor as they shall deem just and reasonable under all circumstances, which compensation, if any be allowed, shall be paid by the Treasurer of the Town out of the moneys of said town on warrant drawn on him by the Commissioners aforesaid, That the Commissioners shall cause a fund to be raised by way of tax upon persons authorized to vote for commissioners by this act, and upon all lands and tenements and interest in such lands and tenements within the limits of said town, or by special assessment on properties specially benefited, as hereinafter provided, to discharge the expense of opening, constructing, improving or repairing the said streets, lanes, alleys, bridges, curbs and gutters, or for any other purpose that will contribute to the safety, convenience and prosperity of said town.

Section 7. That in any proceeding, taken for extending, widening, laying-out, opening, repairing or paving any street, square, lane, alley, gutter or curb under the provisions of this Act, the Commissioners shall (after assessing the damages that may result from the extending, widening or laying out or opening of such street, square, lane or alley to the owner or owners of property or ground necessary to be taken or occupied therefor, taking into consideration all the circumstances of benefit and convenience as well as of detriment to result to such owner or owners) estimate the probable entire cost of such contemplated improvement, including damages to owners of property necessary to be taken or occupied therefor, and after giving timely notice of their time and place of meeting and opportunity to persons interested residing in the Town, to be heard, make an allotment, apportionment, assessment and division of such portion as they shall deem just and reasonable of such estimated cost upon and among the persons, properties, interest and estates which will, in their judgment or that of a majority of them, be specially benefited by such improvement, according and in proportion to the quantity and extent of such benefit, according to their best judgment. In forming such judgment all those shall be deemed specially benefited by such proposed improvement who, in the judgment of the commissioners, may be benefited thereby beyond the value of any detriment which can occur to them thereby, or who may be benefited thereby without any detriment therefrom, and in either case beyond the benefit which insures to the citizens of the Town or property owners therein generally by reason of such improvements. The Commissioners having made such allotment, apportionment, assessment and division of such portion of such estimated cost, shall enter such approved assessment in the record of lien book which shall be kept for that purpose. And the same being so recorded shall at once constitute and be evidence of a debt for that amount and in that behalf from the person assessed to Commissioners of the Town of Newport, and shall further, from time of its entry as aforesaid, be and remain, for a period of ten years from the date of its entry, a lien upon the lands and buildings, interest and estate in respect of which such assessment for benefit was made, and as such lien shall have priority over any lien, encumbrance or conveyance made or suffered by the owner or owners of such property after the recording of such assessment as aforesaid. In the event of a successful appeal from such a special assessment, the revised assessment shall be recorded and become a lien replacing the lien appealed from.

In the case of sale under execution process of any lands and tenements upon which such liens for road construction, paving or curbs shall exist, such liens shall be transferred to the fund arising from such sale in the hands of the officer making the same and the said real estate so sold shall be discharged therefrom.

That whenever the Commissioners shall have determined to locate and lay out or pave any new street or curb and shall have fixed the compensation or assessment therefor, it shall be their duty, immediately after the survey and location of said street, to notify in writing, by mailing notice to the last known addresses of the owner or owners and the tenant thereof, if there be one, of the real estate through or over which such new street may run of their determination to open the same, and to furnish a general description of the location thereof, and also the amount of such damages, compensation or assessment allowed as to each. If any owner be dissatisfied with the determination to lay out and open the said street, or with the amount of the compensation, damage or assessment, he may, within ten days after mailing notice from the commissioners as aforesaid, appeal from the said determination or assessment, or both by serving written notice to that effect on the said commissioners, or some one of them. In order to prosecute said appeal such owner or owners, shall, within ten days after the expiration of the ten days allowed for appeals, apply to a Justice of the Peace, residing in or near said town, who shall, within three days thereafter, and upon notice to the said commissioners, or some one of them, select and write down on a list the names of twenty-one judicious and impartial freeholders, nine of whom shall be freeholders, of Christiana Hundred owning no real estate in said town and not residing within its limits, and the remaining twelve be freeholders owning real estate in said town and residing within its limits. The said commissions shall, upon receiving said notice from the justice, immediately notify all persons owning real estate on the said street, and residing in said town, who have notified them of their intention to appeal, of the time and place when and where the said names will be selected, and at the time and place mentioned in the notice of the justice, the said appellants, or as many of them as choose, and the said commissioners, shall attend. The appellants, their agent or attorney, shall first strike out one of said names, and the commissioners, their agent, or attorney, shall strike out another, until each shall have struck out seven; such striking shall be so confined and regulated as to leave seven remaining freeholders located as follows, viz: four residing in said town and three residing out of said town, who shall constitute the freeholders who shall determine concerning the necessity of said street and assess the damages of all owners of real estate through or over whose ground the said street shall run who shall have notified the commissioners of their intention to appeal, and their award and assessment shall be final, and a copy thereof shall be communicated to all parties, appellants and commissioners. In case either side, commissioners or appellants, be not represented before the justice, or shall refuse to strike, the justice shall strike for the party so absent, neglecting or refusing. Any party, appellant or commissioner, may, within ten days after the appointment of said freeholders, and upon five days' notice to the other parties resident in said town, or in case of non-resident notice to the holders of any real estate, call out the freeholders, aforesaid, who shall thereupon proceed, upon oath or affirmation, to inquire of the necessity of such street, and in the case they deem such street to be necessary to assess the damages and benefits of the several owners. Their award shall be made within twenty days from the time of notifying them to meet. If any freeholder thus appointed and notified shall refuse to serve he shall forfeit the sum of Twenty Dollars to be recovered in an action of debt before any Justice of the Peace of New Castle County in the name of the Town Commissioners for the use of said town. If in case the award of the freeholders shall be against the necessity of any such street, then no petition for any such new street so condemned shall be entertained by the Commissioners then acting during the terms for which they were elected. The act of a majority of said freeholders shall be as good as an act of the whole in making any such award or assessment of damages.

Section 8. After the damages and benefits shall be fixed and ascertained by the freeholders, the commissioners aforesaid shall have the option to pay the damages assessed as aforesaid and to proceed with the said improvements, or, upon payment of the costs, may abandon the proposed improvements.

Approved April 10, 1947.