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township, city or town, and upon a petition of five resident taxpayers in such village or school district: Provided, that the several counties, cities, villages, incorporated towns, townships and school districts in this state which have heretofore compromised and funded bonds or indebtedness for themselves or the municipal townships thereof are hereby authorized and empowered to refund the same, or any part thereof, without election, as provided by this chapter. [R. S. 1889, Sec. 835. Amended laws 1897, p. 39.

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SECTION 1. City counselor to file petition.- Whenever the common council in any city of the second class shall provide by ordinance for establishing, opening, widening or altering any street, avenue, alley, market place or public square, or route for a sewer, and it becomes necessary for that purpose to appropriate private property, and shall, in said ordinance, define the limits within which private property shall be assessed to pay for said improvement, the city counselor, in the name of such city, shall apply to the circuit court of the judicial circuit where such city is located, or to any one of the judges in vacation, by petition, setting forth the general nature of the improvements proposed to be made, the names of the owners of the several lots or parcels of land, if known, or, if unknown, a correct description of the parcels whose owners are unknown, and praying the appointment of three disinterested commissioners, free holders of property in said city, to assess the damages which said owners may severally sustain by reason

of the appropriation and condemnation of such real estate by the city for any of the purposes aforesaid, and to assess the property especially benefited by said improvement within said. limits to pay therefor, to which petition the owners of all such lots or parcels of land embraced in the proposed improvement shall be made parties defendant by name, if the names be known, and by the description of the land of unknown owners. If the proceedings seek to affect lands of persons under guardianship, the guardians must be made parties defendant; if the lands of married women, their husbands must be made parties defendant. If the possessor of land to be affected has an estate less than a fee, the person having the next vested estate in remainder or reversion must, if known, be made a party defendant. It shall not be necessary to make any person parties defendant in respect to their ownership unless they are in actual possession of the premises to be affected, or have a title to the premises appearing of record upon the proper record of the county. [Lars 1893, p. 62.

SEC. 2.

Notice of filing petition.-Upon the filing of the petition a summons shall be issued giving such defendants at least ten days' notice of the time when the said petition will be heard, which summons shall be served by the chief of police, who shall for such purpose be ex officio an officer of the circuit court, in the same manner as writs of summons are or may be by law required to be served. If the name or residence of the owner be unknown, or if the owner or any of them do not reside within the state, notice of the time of the hearing of the petition, reciting the substance of the petition, and the day fixed for the hearing thereof, shall be given by publication for four weeks consecutively, prior to the time of hearing the petition, in the newspaper for the time doing the city printing. [Laws 1893, p. 62.

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SEC. 3. Appointment of commissioners. court, or a judge thereof in vacation, on being satisfied that due notice of the pending of the petition has been given, shall

appoint three disinterested commissioners, freeholders of property in said city, and residents of the city for three years next preceding their appointment, to assess the damages which the owners of the land may severally sustain by reason of such appropriation, and to assess the property especially benefited by said improvement within said limits to pay therefor. [Laws 1893, p. 62.

SEC. 4. Duties of commissioners.-It shall be the duty of the commissioners to ascertain the actual value of the land and premises proposed to be taken, without reference to the projected improvement and the actual damage done to the property thereby, and for the payment of such values and damages to assess against the city the amount of benefit to the public generally, and the balance against the owner or owners of all property within said limits which shall be especially benefited by the proposed improvement, in the opinion of the commissioner, to the amount that each lot of said owner shall be benefited by the improvement. The sums to be paid by the owners of property especially benefited by the improvement, as ascertained by the commissioners, shall be a lien upon the property so charged, and shall be collected as provided by ordinance, and when collected shall be paid into the city treasury as a separate fund, to be used exclusively for the payment of the damages awarded: Provided, however, that in the opening of an alley the benefits shall be paid by the owners of the property in said block abutting on the proposed alley. [Laws 1893, p. 62.

SEC. 5. Return of assessment.- -When the commissioners shall have viewed the property and assessed the value and damages and benefits, they shall make their return of such assessment in writing and under oath to the circuit court, or clerk in vacation, which shall be filed by the said clerk. In making such report, the value and damages allowed to each owner and the benefits assessed against each individual shall be separately stated. [Laws 1893, p. 62.

SEC. 6. Exceptions to report of commissioners. -The report of said commissioners may be reviewed by the circuit court, or judge thereof in vacation, on written exceptions filed by either party in the clerk's office within ten days after the filing of such report, and [he] shall make such order therein as right and justice may require, and may order a new appraisement on good cause shown; but the hearing of such exceptions shall be summary, and the court shall fix a day therefor without delay, upon the filing of any such exceptions, or within ten days after the expiration of the time given said city to report the same to the common council as hereinafter provided. [Laws 1893, p. 62.

SEC. 7. Costs of proceedings, by whom paid.— The cost of the proceedings, up to and including the filing of the report of the commissioners, shall be paid by the city, and as to any cost caused by subsequent litigation, the cost shall be paid by the losing party. The commissioners may be allowed a reasonable compensation for their services, to be fixed by the common council by ordinance. [Laws 1893, p. 62.

SEC. 8. Report of commission to council.—Upon the report of said commissioners being filed in the circuit court, or with the clerk thereof, the court shall give to such city, upon application of the city counselor, reasonable time to report the result of the same to the common council for its information and approval, during which time no action will be had in or by said court upon said report; and such city shall have the right, at any time before the final confirmation of said report, to dismiss and withdraw said proceedings on payment of costs thereof; should the city dismiss or withdraw any proceedings for condemnation after the report of the commissioners has been filed, no action for such condemnation shall be had for a period of three years next thereafter, unless upon the petition of the owners of three-fourths of the property fronting on the line of the proposed improvement, or upon payment by the city

of the entire value and damages such as aforesaid. 1893, p. 62.

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SEC. 9. Appropriation to pay damages. When the report of the commissioners shall have been approved, or final action taken thereon by the court, the clerk of the circuit court shall make a certified copy of the report and the final action of the court thereon, and deliver the same to the city clerk, who shall forthwith record the same in a book to be provided for the purpose. It shall be the duty of the clerk, as soon as the same is recorded, to furnish a copy thereof to the common council, and the common council shall, at its first session thereafter, make an appropriation for the payment out of the city treasury of the amount awarded against said city, or the total amounts awarded, as the council may deem advisable, and the city treasurer shall cause the same to be paid to the parties entitled thereto, respectively, or into court for their use, as provided by ordinance. Any failure of the common council, within the time above stated, to make such appropriation, shall operate as a dismissal of such proceedings, and no future action for such condemnation shall be commenced for a period of five years, except as herein before provided in case of dismissal by the city. [Laws 1893, p. 62.

SEC. 10. Damages to be paid into court, when.It the ownership of property condemned be in controversy, the amount of the damages assessed for said property shall be paid into the court for the use of the successful claimant of the property Provided, however, that as soon as the damages assessed shall have been paid or tendered to the parties entitled thereto, respectively, the improvement may be proceeded with. [Laws 1893, p. 62.

SEC. 11. Council to pass ordinances in certain cases. When it becomes necessary for the city to condemn private property for other and different public uses than those already specified in this act, the common council shall pass an ordinance to that effect, which shall set forth the purposes for

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