CHAPTER 271

ESTABLISHING UNIFORM PROCEDURE FOR CONDEMNATION OF PROPERTY UNDER POWER OF EMINENT DOMAIN

AN ACT ESTABLISHING A UNIFORM PROCEDURE FOR THE CONDEMNATION OF PROPERTY UNDER THE POWER OF EMINENT DOMAIN, AND FOR THE DETERMINATION OF JUST COMPENSATION IN SUCH CASES.

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

Section 1. The provisions of this Act shall, after its effective date, govern the procedure for all condemnations of real and personal property within the State of Delaware under the power of eminent domain exercised by any authority whatsoever, governmental or otherwise, except that this Act shall not apply to condemnation proceedings instituted under the provisions of the Act of Assembly approved April 18, 1945, being Chapter 274, Volume 45, Laws of Delaware, as now or hereafter amended, as to which proceedings the provisions of 5730. Sec. 11. of Chapter 166 and of 1676. Sec. 32. of Chapter 55 of the Revised Code of Delaware, 1935, as modified by the provisions of the said Act of Assembly approved April 18, 1945, as now or hereafter amended, shall be continued in full force and effect.

Section 2. COURT. All condemnation proceedings within the State of Delaware shall be commenced by filing a complaint as hereinafter provided in the Superior Court of the State of Delaware in and for the County where the property is located, or if part of such property shall be situated in one County and part in another, then in either County; the Superior Court of the State of Delaware shall have exclusive jurisdiction of all condemnation proceedings.

Section 3. APPLICABILITY OF SUPERIOR COURT RULES. The Rules of the Superior Court of the State of Delaware, as amended from time to time shall govern, in so far as applicable, all condemnation proceedings of real and personal property under the power of eminent domain, except as otherwise provided herein.

Section 4. JOINDER OF PROPERTIES. The plaintiff may join in the same action one or more separate pieces of property, whether in the same or different ownership and whether or not sought for the same use.

Section 5. COMPLAINT.

(1) Caption. The complaint shall contain a caption as provided in Rule 10 (a) of the Rules of the Superior Court, except that the plaintiff shall name as defendants the property, designated generally by kind, quantity, and location, and at least one of the owners of some part of or interest in the property.

(2) Contents. The complaint shall contain a short and plain statement of the authority for the taking, the use for which the property is to be taken, a description of the property sufficient for its identification, the interest to be acquired, and, as to each separate piece of property, a designation of the defendants who have been joined as owners thereof or of some interest therein. Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the determination of compensation to be paid, the plaintiff shall add as defendants all persons having or claiming an interest in that property whose names can be ascertained by a search of the records to the extent commonly made by competent searchers of title in the vicinity in the light of the character and value of the property involved and the interest to be acquired, and also those whose names have otherwise been learned. All others may be made defendants under the designation "Unknown Owners." Process shall be served as hereinafter provided in Section 6 of this Act upon all defendants, whether named as defendants at the time of the commencement of the action or subsequently added, and a defendant may answer as provided in Section 7 of this Act.

Section 6. PROCESS.

(1) Summons; Serviced; Delivery. Upon the filing of the complaint the Prothonotary shall issue summons, in appropriate form, directed to all of the defendants designated or named in the complaint, which summons shall be personally served in like manner as other writs of summons in said Court in accordance with Rule 4 (d) and 4 (f) (1) (I), (III), (IV).

(2) Service by Publication. If it shall appear by affidavit of the plaintiff or his attorney that any defendant cannot be personally served with summons, because he is outside of the State of Delaware, or because after diligent inquiry his place of residence cannot be ascertained by the plaintiff, or if any defendant is an infant or incompetent person or under some other legal disability, the Court may make an order directing that service shall be made upon any such defendant by publishing a notice, substantially in the form hereinafter prescribed, in a newspaper of general circulation in the county in which the proceeding shall be pending, at least once a week for two successive weeks. Such service by publication shall be supplemented by service by registered mail, where practicable, as the Court in its order may direct. Notice to unknown owners shall be given by publication in like manner by notice addressed to "Unknown Owners," coupled, if practicable, with an appropriate identification of the alleged source of their interest in the property, as the Court may direct. Proof of publication and of mailing, if required, shall be made by affidavit of the plaintiff or his attorney on or before such time as the Court may fix.

The notice herein referred to shall set forth the name of the Court, the title of the action, the name or names of the defendant or defendants to whom it shall be directed, a statement that the action is one for the condemnation of property, a brief description of such property reasonably sufficient for its identification, the extent of the interest to be taken, the authority for the taking, and the use or uses for which the property is to be taken. The notice shall also state that any defendant shall serve and file, in accordance with the rules of court, an answer within twenty days after the date of the first publication of said notice, in default of which no objection or defense to the taking of the property will be heard. The notice shall also specify the name and address of the plaintiff's attorney therein.

Section 7. OBJECTIONS OR DEFENSE TO TAKING. Any objection of defense to the taking of the property, or any interest therein, by any defendant, shall be made by answer. Any such answer setting forth any such objection or defense shall identify the property in which the answering defendant shall claim to have an interest, shall state the nature and extent of the interest claimed, and shall state specifically any such objections or defense to the taking of the property. All objections and defenses not so presented shall be deemed waived. After the disposition of all such objections and defenses the cause shall proceed to the trial of the issue of just compensation.

Section 8. TRIAL. After the time has expired for answering the complaint and all preliminary questions of law disposed of, the cause shall be placed upon the regular trial calendar of the Superior Court for trial. Prior to the trial date the Court shall submit to the appearing parties a list of 11 proposed Commissioners, who are impartial, uninterested and judicious citizens of the County where the real property is situated or the personal property is found, showing their full names and addresses. Thereafter, at a place and time designated by the Court, the plaintiff or plaintiffs shall (jointly, if more than one), strike out one of said names, and then the defendant or defendants shall (jointly, if more than one) strike out another, and so on until 8 names shall have been stricken out. If the plaintiff or plaintiffs or the defendant or defendants refuse to strike or do not attend the striking or cannot agree among themselves, then the Court or the Prothonotary or his deputy, if designated by the Court, shall strike, for the party or parties refusing to strike, to attend, or who cannot agree among themselves. After the opposing parties shall have stricken 8 names, the remaining 3 shall be the Commissioners for the cause and the Prothonotary shall thereupon deliver to the Sheriff a certified list of the names of the said 3 Commissioners, with their addresses annexed to a writ commanding him to summon the three named persons as Commissioners to attend the Superior Court for trial at a time fixed by said Court; and the Sheriff shall, thereupon, summon them according to the command of said writ and shall return the said list with the writ. At the trial of the cause and before entering upon their duties, the three Commissioners shall be sworn or affirmed faithfully and impartially to perform the duties assigned to them. The Court, in its discretion, shall determine whether or not said Commissioners shall view the premises and if a view is ordered shall designate the time therefor. The view, if ordered, shall be conducted under the supervision of the Court by the Court Bailiffs and said view shall not be considered as evidence but only for the purpose of better understanding the evidence presented at the trial, nor shall any testimony be taken at the view; however, this restraint shall not prevent the parties from designating and identifying the property during the view. At the trial any party may present competent and relevant evidence upon the issue of just compensation and all such evidence shall be given in the presence of the Court and the Commissioners. The Court shall, during the course of the trial, determine all questions of law and the admissibility of all evidence and a verbatim transcript of the trial shall be made and preserved as part of the record. If one of the three Commissioners becomes incapacitated during the course of the trial, the remaining two shall have power to make the factual determination of just compensation. After all evidence is presented and the Commissioners have been charged by the Court with the applicable law, they shall retire and in secret arrive at a determination of the amount to be awarded as just compensation for the respective parties in interest, and thereafter announce their awards in open Court. Such awards shall be confirmed by the Court unless the said Commissioners shall have been guilty of misconduct in their proceedings, or unless they shall have made an improper award to any party in interest, whether based upon an error of fact or law, in which events the Court may, upon its own motion, or motion of any party filed and served within 5 days of the award, set aside the erroneous award in whole or in part, or modify it to conform to the facts as presented by the evidence, or to conform it with the law as announced by the Court. In the event the award is set aside in whole or in part, the Court may, in its discretion, recommit it to the Commissioners with instructions. The final award, as confirmed or modified, may be reviewed by the Supreme Court, subject, however, to the provisions of Section 12 of this Act; the Prothonotary shall record the final award in a special docket to be maintained for that purpose.

Section 9. DISMISSAL OF ACTION.

(1) As of Right. If no hearing has begun to determine the compensation to be paid for a piece of property and the plaintiff has not acquired the title or a lesser interest in or taken possession thereof, the plaintiff may dismiss the action as to that property, without an order of the Court, by filing a notice of dismissal setting forth a brief description of the property as to which the action is dismissed.

(2) By Stipulation. Before the entry of any award or possession of property is taken by the plaintiff, the action may be dismissed, in whole or in part, without an order of the Court, as to any property by filing a stipulation of dismissal by the plaintiff and the defendant affected thereby, and, if the parties so stipulate, the Court may vacate any award that has been entered.

(3) By Order of the Court. At any time before compensation for a piece of property has been determined and paid and, after motion and hearing, the Court may dismiss the action as to that party, except that it shall not dismiss the action as to any part of the property of which the plaintiff has taken possession, or in which the plaintiff has taken title or a lesser interest, but shall award just compensation for the possession, title or lesser interest so taken. The Court at any time may drop a defendant unnecessarily or improperly joined.

(4) Effect. Except as otherwise provided in the notice or stipulation of dismissal, or order of the Court, any dismissal is without prejudice.

Section 10. RIGHT TO ENTER INTO POSSESSION. At any time after the filing of any condemnation proceeding the plaintiff, upon the filing of a notice of intention to take possession of the property sought to be condemned, or any part thereof, on a day therein specified, and upon deposit in said Court of the sum of money estimated by plaintiff to be just compensation for the property or the part thereof taken, shall have the right to enter into possession, occupy or take said property from and after said day, upon entry of an appropriate order by the Court, which order may be made ex parte and without notice.

Upon application of any party in interest, the Court may order the money so deposited in Court, or any part thereof, be paid forthwith for or on account of just compensation to be awarded in said proceeding and such payment shall not jeopardize any party's right to prove just compensation in a greater or less amount. If the compensation finally awarded to any defendant shall exceed the amount paid to him on distribution of the deposit, the Court shall credit the payment to the final award and if the compensation finally awarded to any defendant is less than the amount which shall have been paid to him, the Court shall enter judgment against him in favor of the plaintiff for such overpayment.

In any case where possession shall have been so taken the, obligation of the plaintiff to pay the amount ultimately determined as just compensation in the cause shall be absolute; title shall vest in plaintiff on the date of payment of the final award.

Section 11. COSTS. The costs of any such condemnation proceeding herein provided for, including a reasonable fee for the Commissioners but in no case to exceed Twenty Dollars per day per each Commissioner, and including the cost of giving notice by publication and by registered mail hereinabove provided, shall be borne and paid for by the plaintiff or plaintiffs in the proportions determined by the Court. Fees of counselor of experts retained by any party may not be taxed as costs under any circumstances upon any of the parties or considered in determining the issue of just compensation.

Section 12. RIGHT OF REVIEW. There shall be a right of review in every condemnation cause from the final confirmed award of the Superior Court to the Supreme Court of the State of Delaware as in the manner provided for review of any other final civil judgment of said Superior Court; provided, however, that any such review must be instituted within one month from the time of entry of the final confirmed award of the Superior Court.

Section 13. PAYMENT OF AWARDS. In the event no review is taken, the plaintiff or plaintiffs may pay or tender the amount of the award within two months after the entry of the confirmed award of the Superior Court, and in the event a review to the Supreme Court is taken, plaintiff or plaintiffs may pay or tender the amount thereof within one month of the entry of any final award entered pursuant to the mandate of the Supreme Court. Interest shall accrue on the award from the date of taking possession or from the date of the award, whichever first occurs.

Section 14. DEPOSIT OF AWARD. In any case in which any final award is made to any party in interest who is unknown, is a minor, or is mentally incompetent, or is under any other legal disability, cannot be found, or resides outside of the State, or refuses to accept such award, the Court shall have power to direct that the amount of such award be deposited by the plaintiff to the credit of such party in the Farmers Bank of the State of Delaware in the County Seat of the County wherein such condemnation proceedings are instituted, within the periods providing for payment as set forth in Section 13 of this Act, or the Court may make such other order as appropriate and just.

Section 15. REPEALER. All statutes and parts of statutes inconsistent with this Act or any part hereof are hereby repealed, but nothing herein contained shall affect or change the provisions of Section 3702, Revised Code of Delaware, 1935, which requires a record of the condemnation proceedings to be filed in the Office of the Prothonotary and a Certified Abstract to be filed in the Recorder of Deeds Office.

Section 16. CONSTITUTIONALITY. If any provisions of this Act of the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

Section 17. EFFECTIVE DATE. This Act shall become effective thirty days after its enactment to all proceedings thereafter instituted, but shall not be applicable to actions then pending, unless all parties to such pending actions consent to proceed under this Act.

Approved June 5, 1951.