(1)The
court shall set a date, not less than twenty-one days after the filing of such motion,
for the hearing thereon, and the court shall require at least fourteen days' notice to
be given to each party to the proceeding whose interests would be affected by the
taking requested. The averments in the motion and the necessity for the vesting of
title, or some lesser estate, prior to the final determination of just compensation are
deemed admitted unless such averments are controverted in a responsive pleading
filed at or before the hearing on the motion for vesting.
(2)At the hearing on the motion for vesting, if such averments have been
controverted in responsive pleadings filed at or before the said hearing and if the
court has not previously, in the same proceeding, determine
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(1) The
court shall set a date, not less than twenty-one days after the filing of such motion,
for the hearing thereon, and the court shall require at least fourteen days' notice to
be given to each party to the proceeding whose interests would be affected by the
taking requested. The averments in the motion and the necessity for the vesting of
title, or some lesser estate, prior to the final determination of just compensation are
deemed admitted unless such averments are controverted in a responsive pleading
filed at or before the hearing on the motion for vesting.
(2) At the hearing on the motion for vesting, if such averments have been
controverted in responsive pleadings filed at or before the said hearing and if the
court has not previously, in the same proceeding, determined the same, the court
shall first hear and determine the following matters:
(a) The authority of the petitioner to exercise the right of eminent domain;
(b) Whether the property described in the motion for vesting is subject to the
exercise of the right of eminent domain;
(c) Whether the right of eminent domain is being properly exercised in the
particular proceeding.
(3) Failure to raise the issues enumerated in subsection (2) of this section, at
or before the hearing on the motion for vesting, constitutes a waiver insofar as the
said issues relate to the property described in the motion for vesting. The court's
order thereon is a final order, and an appeal may be obtained for the review thereof
by either party within twenty-one days after the entry of such order, but not
thereafter unless the appellate court, on good cause shown, shall, within the
twenty-one-day period, extend the time for obtaining an appeal. Appellate review
shall not stay the other proceedings under this article, unless the appeal was
obtained by the petitioner or unless an order staying such further proceedings is
entered by the appellate court upon a showing of irreparable injury.
(4) If the issues enumerated under subsection (2) of this section are
determined in favor of the petitioner and further proceedings are not stayed or if
further proceedings are stayed and the appeal results in a determination in favor of
the petitioner, the court shall hear and determine all matters raised in and relating
to the motion for vesting. If the foregoing matters are determined in favor of the
petitioner, the court shall appoint three disinterested commissioners, who shall be
freeholders, to assess the compensation to which the respondents named in the
motion for vesting may be entitled by reason of the appropriation of the petitioner.
(5) The commissioners, before entering upon the duties of their office, shall
take an oath to faithfully and impartially discharge their duties as commissioners.
Any one of them may administer oaths to witnesses produced before them. The
commissioners shall forthwith view the property, hear such testimony, and consider
such evidence as is reasonably necessary to enable them to make a preliminary
finding of an amount constituting just compensation for the taking of the property
of the respondents named in the motion for vesting. The commissioners shall
forthwith make, subscribe, and file with the clerk of the court in which such
proceedings are had a certified report meeting the requirements of section 38-1-115. Upon the motion of the petitioner filed within fourteen days of receipt of the
notice provided for in section 38-7-103 (1), the court shall review the said report of
the commissioners, and, upon good cause shown by the petitioner, the court may
order a new report by the same or different commissioners, and the said order shall
void the report objected to. The new commissioners appointed, if any, and the new
report shall be in accordance with the provisions of this article.
(6) Such preliminary finding of just compensation and any deposit made or
security provided pursuant thereto shall not be evidence in the further proceedings
to ascertain finally the just compensation to be paid and shall not be disclosed in
any manner to a jury impaneled in such proceedings.