CHAPTER 338

FORMERLY

SENATE BILL NO. 158

AN ACT TO AMEND TITLE 17, CHAPTER 13, DELAWARE CODE, RELATING TO THE VACATING OF PUBLIC ROADS AND BRIDGES.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend §1302 of Chapter 13, Title 17, Delaware Code by striking said section in its entirety and substitute in lieu thereof a new section to read as follows:

"§1302. Application; Notice.

Five or more freeholders of the county in which the road or bridge desired to be vacated is located, or the Department or the county in which the road or bridge is located, may apply to the Superior Court of such county for the vacation thereof, first giving notice to the Department and to the county, if neither is the applicant, and to all persons owning property which abuts upon and is contiguous to or which is accessible only by, along or across that part of the road or bridge desired to be vacated, by mailing to the Department, the county, and to such persons or their legal representatives, if known, at their last known post office address written notice of the intended application at least ten days prior to its presentation to the court, and also by publishing notice, at least once per week for two consecutive weeks, to all parties of interest, in some newspaper or general circulation in the county in which such road or bridge is located, of the intended application at least five days previous to its presentation."

Section 2. Amend Chapter 13, Title 17, Delaware Code by adding thereto a new section to be designated as §1302A to read as follows:

"§1302A. Hearing and evidence.

After all interested parties have received notice in accordance with Section 1302, hearing shall be held in Superior Court, at which each party before the Court, including the Department and the county, may present relevant evidence regarding the necessity or advisability of the continued use of the road or bridge for the benefit of the general public or interested parties. Upon the conclusion of the hearing, the Superior Court shall order whether said road or bridge shall be vacated."

Section 3. Amend §1303(a), Chapter 13, Title 17, Delaware Code by striking said paragraph in its entirety and substitute in lieu thereof a new paragraph (a) to read as follows:

"(a) If the Superior Court orders that the bridge or road shall be vacated, it shall then appoint five judicious and impartial freeholders of the county to view the public road or bridge and make return on a date fixed by the Court, authorizing the freeholders, so appointed, to employ if necessary a surveyor, and directing them to determine who shall enclose the same or any part thereof, and what portion of the costs such persons or agencies ought to pay respectively, all of which shall be set out in the return."

Section 4. Amend §1304, Chapter 13, Title 17, Delaware Code by designating the existing paragraphs thereof as paragraphs (a) and (b) and adding thereto a new paragraph to be designated paragraph (c), so that it reads as follows:

"(c) On a day fixed by the Court, hearing shall then be had on the issue of damages as presented in the return. At such hearing all interested parties may present evidence and argument regarding the question of damages, their amount and apportionment. At the close of said hearing, the Court shall enter an order fixing damages in such manner as it determines the evidence warrants."

Section 5. Amend §1305, Chapter 13, Title 17, Delaware Code by striking said section in its entirety and substitute in lieu thereof a new section which shall read as follows:

"§1305. Appeal.

Any interested party before the Superior Court may appeal its decision to the Supreme Court, as provided by statute, regarding either the question or whether the road or bridge shall be vacated or the question of the amount of damages and their appointment."

Section 6. Section 1306, Chapter 13, Title 17, Delaware Code, is hereby repealed and the following new section is enacted in lieu thereof:

§1306. Payment of damages.

Payment of damages shall be in such amounts and such terms and conditions as the Superior Court by order shall direct. Any other of the Superior Court to vacate a road or bridge shall not become final until all damages have been paid in accordance with the Court's order."

Section 7. Section 1307, Chapter 13, Title 17, Delaware Code, is hereby repealed and the following new section is enacted in lieu thereof:

"§1307. Effect of failure to pay ascertained damages.

Whenever any interested party neglects or omits to pay or tender the amount of ascertained damages to the persons entitled to the same, said interested party shall be subject to contempt power of the Court, upon proper application by any person to whom damages are payable pursuant to the terms of the Court's order regarding same."

Section 8. Section 1308(a), Chapter 13, Title 17, Delaware Code, is hereby repealed and the following new paragraph (a) is substituted in lieu thereof:

"(a) The freeholders shall be allowed $25 a day for their services and shall be entitled to mileage at the rate of $.15 a mile going and returning."

Section 9. Section 1310, Chapter 13, Title 17, Delaware Code, is hereby repealed and the following new section is enacted in lieu thereof:

"§1310. Power of Railroads to vacate roads in special cases by agreement.

A railroad company by agreement with the land owners interested, and the approval of both the Department and the county wherein the road is located, may, without proceedings provided for in this chapter, change, at the expense of such company, any public or private road whenever a change will add to the safety of public travel. The change shall be made subject to the approval of the Department and of the county wherein the road is located, and shall be certified in writing and appended to a draft thereof, which draft and certification, returned to and recorded by the Prothonotary of the County wherein the same is located, shall to all intents and purposes, confirm the change."

Section 10. Amend §1311 of Chapter 13, Title 17, Delaware Code by striking the second paragraph beginning with the word "whenever" and ending with the word "sufficient" and substitute a new paragraph to read as follows:

"Whenever the necessity for the continuation of an existing public road in this State, or a portion thereof, shall cease by reason of the construction of an improved road, as stated in this section, the Department shall by resolution fix a time and place at which persons interested, including the county wherein the road is located, may be heard with respect to the vacation or abandonment thereof. A copy of the resolution fix a time and place at which person interested, including the county wherein the road is located, may be heard with respect to the vacation or abandonment thereof. A copy of the resolution shall be published in a newspaper of the county in which the public road is located in at least 2 issues thereof, prior to the date fixed for the hearing, and likewise a copy of the resolution shall be sent by mail addressed to the county wherein the road is located and to the owners of land touching the day fixed for the hearing. The 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 the resolution shall be deemed to be sufficient."

Approved March 31, 1976