CHAPTER 132

WILMINGTON - PROVIDING FOR EXERCISE OF EMINENT DOMAIN

AN ACT TO AMEND CHAPTER 269 OF VOLUME 47, LAWS OF DELAWARE, ENTITLED "AN ACT TO AUTHORIZE THE MAYOR AND COUNCIL OF WILMINGTON TO PROVIDE FOR THE PLANNING, ACQUISITION, PURCHASE, CONSTRUCTION, RECONSTRUCTION, IMPROVEMENT, BETTERMENT, EXTENSION, OPERATION, AND MAINTENANCE OF REVENUE-PRODUCING UNDERTAKINGS FOR THE COLLECTION, TREATMENT, AND DISPOSAL OF SEWAGE, WASTE, GARBAGE, AND STORM WATER; AUTHORIZING THE EXERCISE OF THE POWER OF EMINENT DOMAIN AND THE FIXING OF RATES IN CONNECTION WITH SUCH UNDERTAKINGS; AUTHORIZING AND REGULATING THE ISSUANCE OF REVENUE BONDS FOR FINANCING SUCH UNDERTAKINGS; PROVIDING FOR THE PAYMENT OF SUCH BONDS AND THE RIGHTS OF THE HOLDERS THEREOF; AND MAKING AN APPROPRIATION TO THE MAYOR AND COUNCIL OF WILMINGTON FOR SEWAGE TREATMENT PLANTS" BY PROVIDING A MODE OF PROCEDURE FOR THE TAKING OF ANY LAND, BUILDINGS, FRANCHISE, EASEMENT, OR OTHER PROPERTY BY EXERCISE OF EMINENT DOMAIN.

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 of each Branch thereof concurring therein):

Section 1. That Chapter 269, Volume 47, Laws of Delaware, be amended by adding at the end of Section 4 thereof a new section designated as Section 4 (a), as follows:

Section 4 (a). Eminent Domain; Notice to Property Holders:--Whenever The Mayor and Council of Wilmington, acting by and through the agency of the Street and Sewer Department, cannot agree with the owner or owners for the purchase of any land, building, franchise, easement, or other property necessary to be taken or used for the construction, reconstruction, improvement, betterment, extension, operation and maintenance of plants, properties, works, systems or facilities for the collection, treatment and disposal of sewage, waste, garbage and storm water, the said The Mayor and Council of Wilmington, acting by and through the agency of the Directors of the Street and Sewer Department, may apply to the Associate Judge of the State of Delaware, resident in New Castle County, for the condemnation of such land, building, franchise, easement, or other property necessary as aforesaid, first giving to the owner or the owners of said property at least five days' notice in writing of the intended application. If such owner or owners are within the State, and if said party or owner is unknown or without the State, or if under legal disability and having no legal representative in the State, then such notice shall be published in some newspaper in New Castle County at least five days prior to the intended application, and such publication shall be sufficient notice; upon application made as aforesaid, the said Associate Judge shall appoint five judicious and impartial freeholders to view the premises or ascertain the easement or franchise, and assess the damages which the owner or owners will sustain by reason of the taking of such land, building, franchise, easement, or other property necessary to be taken or used for the construction, reconstruction, improvement, betterment, extension, operation and maintenance of plants, properties, works, systems or facilities for the collection, treatment and disposal of sewage, waste, garbage and storm water. The freeholders shall be sworn or affirmed before some officer authorized to administer oaths or affirmations, before entering on the premises or before ascertaining the easement or franchise, faithfully and impartially to perform the duties assigned them. They shall give ten days' notice, in writing, to the owner or owners of the premises or property so proposed to be condemned or to their guardian or guardians, duly appointed, if within the State and to the said The Mayor and Council of Wilmington of the time of their meeting to view the premises or ascertain the easement or franchise; if the owner or owners are unknown or are without the State or if under legal disability and having no legal representative in the State, publication of such last mentioned notice shall be made in some newspaper in New Castle County at least ten days prior to the said meeting, and such publication shall be sufficient notice thereof. The said commissioners shall keep a record of their proceedings with their findings and awards and return the same to the Prothonotary of New Castle County, and shall certify their findings and awards to the owner or owners of the property and to The Mayor and Council of Wilmington; if The Mayor and Council of Wilmington or any party in interest is dissatisfied with such findings or awards, it or he may, on application to said Prothonotary within fifteen days after such findings and awards have been made and filed, sue out a writ of ad quod damnum, requiring the Sheriff of said New Castle County, in the usual form, to inquire of twelve impartial men of his bailiwick of the damages which will be sustained as aforesaid, and their report shall be final. The said commissioners or the said jury shall, in assessing the damages aforesaid, take into consideration the benefits and advantages to the owner or owners resulting from the proposed improvement and set off the value of such benefits or advantages against the loss, detriment and disadvantages, which such owner will suffer, provided that in no case shall the amount estimated as and for benefits and advantages exceed the amount allowed for loss, detriment or disadvantage to such owner. The amount of damages being ascertained, The Mayor and Council of Wilmington may pay or tender the amount thereof within two months after the same shall have been so ascertained, to the person or persons so entitled thereto, or, if the person or persons so entitled refuse to accept or reside out of or are absent from New Castle County during all or any part of said period of two months, the same may be deposited to his credit in the Farmers' Bank of the State of Delaware, within said time, and thereupon said property may be taken and occupied for the use and purpose for which it was condemned, provided that The Mayor and Council of Wilmington, in its discretion, after it has made application as aforesaid for the condemnation of property, may occupy or use such property without delay, and the proceedings for the ascertainment of the damages shall proceed as in this section provided, but in the event of such immediate use or occupation as last aforesaid, The Mayor and Council of Wilmington shall pay to the owner or owners thereof if within the State, or if such owner or owners refuse to accept the amount of damages or are without the County, deposit to his or their credit in the said bank as aforesaid, within twenty days after the damages have been ascertained, the amount. thereof, provided that no application has been made to the said Prothonotary suing out a writ of ad quod damnum, as herein above provided. The expenses of the assessment by the said commissioners of the damages aforesaid, of the fees of the said Sheriff and Prothonotary and of all costs incurred in the execution of the writ of ad quod damnum, shall in all cases be paid by The Mayor and Council of Wilmington. The said Judge shall have power to fill any vacancy in any commission and thereafter the commission shall proceed as though no vacancy had occurred.

In addition to manner of condemnation of property in this section provided, the said The Mayor and Council of Wilmington, acting by and through the agency of the Directors of the Street and Sewer Department, shall have the right to condemn any property in this Act mentioned for the purposes of this Act, in the same mariner as fully as the said The Mayor and Council of Wilmington might or could condemn any property under the provisions of Section 116, Chapter 207, Volume 17, Laws of Delaware. When any property shall be acquired by eminent domain, the title to such property shall be in The Mayor and Council of Wilmington.

After the Directors of the Street and Sewer Department have determined upon the land, buildings, franchise, easement or other property necessary to be taken or used for the construction, reconstruction, improvement, betterment, extension, operation and maintenance of plants, properties, works, systems or facilities for the collection, treatment and disposal of sewage, waste, garbage and storm water, it may cause notice thereof to be sent by mail, a record of which shall be preserved, to all persons owning any land, buildings, franchise, easement or other property necessary to be taken for the purposes aforesaid, and any such owner or the legal representative of any such owner who, after any such notice has been given, shall construct any building or in any manner improve or add to any building on any land, franchise, easement or other property necessary to be taken for the purposes aforesaid, shall be allowed no compensation for such building, improvement or addition, upon the condemnation thereof, or the land upon which it is situated, unless such owner shall serve legal notice upon the Directors of the Street and Sewer Department within three months from the time he received such notice that he claims damages by the reasons of the provisions of this Paragraph, in which event The Mayor and Council of Wilmington, by the agency aforesaid, may apply, as hereinabove provided, for the ascertainment of such damages so claimed by such owner. Nothing in this section shall be construed to authorize the condemnation of any land, building, franchise, easement, or other property of a public utility used by it in providing its service to the public.

Approved May 24, 1951.