§ 15-1983 — Drainage of agricultural lands; procedure

§ 15-1983. Drainage of agricultural lands; procedure.\n 1. Any person or persons owning any swamp, bog, pond, meadow or other\nlow or wet agricultural lands within this state, or a drainage section\nassociation organized pursuant to sections 15-1973 to 15-1981, who or\nwhich shall desire to drain the same in order to increase their\nproductivity or otherwise render them more available for agricultural\npurposes and who shall deem it necessary, in order thereto, that a drain\nor drains, ditch or ditches, dike or dikes, seepage basin or basins for\nthe free passage or disposal of water should be constructed,\nreconstructed, enlarged, cleaned or maintained on lands belonging to\nothers, may acquire an easement or right to effect such purpose pursuant\nto the provisions of the eminent domain procedure law, or in lieu\nthereof, may present a petition duly verified to the department setting\nforth the following facts:\n a. The name and residence of the petitioner or petitioners.\n b. A map or description showing the approximate location and area of\nthe property which is to be drained.\n c. A map or description which will show the location of such drain,\nditches, dikes and basins and the area of the lands and properties to be\noccupied thereby.\n d. The names and places of residence of the owners of the property to\nbe so occupied; if an infant, the name and place of residence of the\nperson with whom he resides; if a person adjudged incompetent by reason\nof mental illness or other cause, the name and place of residence of his\ncommittee or trustee, if he has one, otherwise, the name and place of\nresidence of the person with whom he resides; if a conservatee, the name\nand place of residence of his conservator, if he has one, otherwise the\nname and place of residence of the person with whom he resides; if a\nnon-resident, having an agent or attorney residing in the state,\nauthorized to contract for the sale of the property, the name and place\nof residence of such agent or attorney. If the name or place of\nresidence of any owner cannot after diligent inquiry be ascertained, it\nmay be so stated with a specific statement of the extent of the inquiry\nwhich has been made.\n e. A statement that the petitioner has been unable to agree with the\nowner or owners of the property for the damages to be paid for such\noccupation.\n f. A statement that it is the intention of the petitioner, in good\nfaith, to complete such drains, ditches, dikes and basins, for which\npurpose the property is so occupied.\n g. A request that the department determine the necessity for such\ndrainage and for occupying such lands and property and ascertain the\ncompensation to be made to the owner or owners and that the petitioner\nbe permitted, upon making such compensation, to construct, reconstruct,\nenlarge or clean such watercourses or drains, ditches, dikes and basins,\nand maintain the same across the lands specified.\n 2. In addition, the petition shall be accompanied by an undertaking,\nsatisfactory to the department as to amount and sureties, that\napplicants will pay the expenses of the proceedings and determination as\nhereinafter provided.\n 3. A person who seeks to acquire an easement or right, to effect the\npurpose set forth in subdivision above, pursuant to the provisions of\nthe eminent domain procedure law, and who is unable to provide a\nspecific description of the property to be acquired and its location by\nmetes and bounds, with reasonable certainty, may prior to the\npresentation of a petition to a special term of the Supreme Court, apply\nfor an order permitting such person to enter upon the property sought to\nbe acquired, for the purpose of viewing, surveying, measuring and\notherwise examining such property, in order to describe such property in\nthe petition. Application for such an order shall be made to a special\nterm of the Supreme Court, held in the judicial district in which the\nproperty is located. The court shall if the facts so warrant, grant the\napplication upon such terms and conditions as it may deem advisable. The\ncourt may also require the applicant to post bond to indemnify the owner\nof the property for any damage caused in the making of the survey.\n 4. Upon receipt of such petition, the department shall take such steps\nas it shall deem proper to ascertain if the relief sought can be\naccomplished in the manner described in such petition and other facts\npertinent to the case and to this end may make such surveys or other\ninvestigations as may be in its judgment necessary in the premises.\n 5. Notice of a hearing shall be given as follows:\n a. The department shall appoint a time and place when and where it\nwill hold a hearing for the purpose of determining the necessity for\nsuch drainage and for occupying such lands and properties and assess the\ndamages and benefits resulting therefrom. The department shall deliver\nto the petitioner copies of the petition, to which shall be attached a\nnotice of the time and place appointed for a hearing, addressed to the\nowner of each parcel to be occupied.\n b. The petitioner upon receipt of such copies and notice shall, on the\nsame day, or the next day thereafter, excluding Sundays and holidays,\ncause such copy and notice to be served upon the persons to whom it is\naddressed. A copy of such notice and petition shall be served on the\nowner of each parcel or to any one of several owners of a parcel in case\nthere be more than one. In case the owner is an infant such copy and\nnotice shall be served upon his general guardian, if he has one; if not,\non the person with whom he resides. If a person adjudged incompetent by\nreason of age, drunkenness, mental illness or other cause, service shall\nbe made upon his committee or trustee, if he has one; if not, on the\nperson with whom he resides. If a non-resident, having an agent or\nattorney residing in this state, authorized to contract for the sale of\nthe real property described in the petition, service upon such agent or\nattorney will be sufficent service upon the owner.\n c. Depositing a copy and notice in the post office properly inclosed\nin an envelope addressed to the owner, guardian, committee, trustee,\nagent or attorney, respectively, at his post office address, and paying\nthe postage thereon shall be deemed proper service. Notice of such\nhearing may be given by publishing the same once a week for two\nsuccessive weeks, immediately prior thereto in two newspapers in the\ncounty or counties in which the lands and properties affected are\nlocated, provided personal service cannot be made. Such service shall be\nmade at least fifteen days prior to the date of the hearing.\n 6. Assessment of damages shall be as follows:\n a. The department shall view the premises affected and at the time and\nplace appointed shall hear all parties interested and such witnesses as\nthey may produce. Such hearing may be adjourned at the discretion of the\ndepartment.\n b. At the close of such hearing, if the department shall determine\nthat the occupying of the lands and properties specified is necessary\nfor the drainage of the lands of the petitioner, it shall assess the\ndamages to the person or persons owning the same and fix the\ncompensation to be made therefor. In fixing the amount of compensation\nfor lands or property to be taken, the department shall make such\nallowance or deduction on account of any benefits which the owners may\nderive from the proposed work as the department shall determine to be\njust and equitable in the premises.\n c. A copy of such determination, duly certified by the department,\nshall be filed by the department in the clerk's office of the county or\ncounties in which such lands and properties are located. A copy of such\ndetermination shall be served by the department by mail on each\npetitioner and on each owner of each parcel or on any one of several\nowners of a parcel in case there be more than one, together with a\nnotice of the date and place of filing such certified copy in the county\nclerk's office.\n 7. Review shall be as follows:\n a. If the petitioner or petitioners feel aggrieved by the decision of\nthe department, he or they may review the same as provided in section\n15-0905. Unless such proceeding for review shall have been instituted\nwithin sixty days after filing of the decision in the county clerk's\noffice, the decision of the department shall be deemed final. If the\nfinal decision shall be adverse to the applicant, no other application\nto the department for the construction of the same works shall be made\nwithin one year.\n b. If the owner or owners of the property to be occupied feel\naggrieved by the decision of the department only to the extent that it\ndetermines the necessity for the occupation of the lands and properties\nof such owner or owners, he or they may review the same as provided for\nin section 15-0905. Unless such proceeding for review shall have been\ninstituted within sixty days after the filing of the decision in the\ncounty clerk's office, the decision of the department shall be deemed\nfinal. If such owner or owners feel aggrieved by the assessment of\ndamages made by the decision of the department he or they may apply,\npursuant to the applicable provisions of the eminent domain procedure\nlaw to ascertain the compensation to be made to the owner or owners for\nthe property to be taken. Upon the granting of such an order the\nproceeding shall continue for the ascertainment of compensation as\nprovided by the eminent domain procedure law as if acquisition\nproceedings had been instituted by the petitioners in the first\ninstance. Such an application shall save to such owner or owners the\nright to review the determination of necessity for the drainage works\nmade by the department on any appeal taken to the Appellate Division by\npetitioners or owners pursuant to the provisions of the eminent domain\nprocedure law.\n 8. If after the expiration of sixty days proceedings have not been\ninstituted to review the decision of the department as provided in\nsubdivision 7 above, the petitioner or petitioners shall pay the damages\nassessed by the department and may thereafter enter upon such lands or\nproperties for the purpose of constructing, reconstructing, enlarging,\ncleaning or maintaining such drains, ditches, dikes and basins. Deposit\nof the money to the credit of the owner or owners, pursuant to the\ndirection of the department, shall be deemed a payment within the\nprovisions of this section.\n