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which said property is required, and to which it shall be especially dedicated. The value and damages of said property

shall be ascertained in the same manner as directed in this act in the case of opening streets, and the same shall be paid by the city to the owner or owners of said property. p. 62.

ARTICLE XII.

[Laws 1893,

[blocks in formation]

SECTION 1. No street or alley to be graded except on petition of property holders.-The established grade of any street, avenue, alley, or any part thereof, which shall hereafter be by ordinance changed from such established grade, shall not be graded to such changed grade except as hereinafter provided, unless the property owners to be disturbed thereby shall sign a petition therefor, in which each shall waive all claims for damages on account thereof. [R. S. 1889, Sec. 1408.

SEC. 2. Ordinance to prescribe beneficiary limits. When any ordinance shall be passed ordering the grading or regrading of any street, avenue, alley, or any part thereof, to such changed grade, the common council shall, in the same ordinance, determine and prescribe the limits within which private property is benefited by the proposed grading to the grade so changed. [R. S. 1889, Sec. 1409.

SEC. 3. Ordinance to be published. The city clerk or the mayor shall, at the cost of the city, cause to be pub

lished a copy of said ordinance within twenty days from the taking effect of the same, in some newspaper printed and published in the city, in each issue of such paper for ten successive issues. [R. S. 1889, Sec. 1410.

SEC. 4. Plat to be furnished mayor.-Within thirty days after the passage of the ordinance, the city engineer, or if there be none, the county surveyor, shall furnish the mayor or city clerk a map or plat containing a correct description of the several lots or parcels of private property in the benefit limits prescribed in said ordinance. [R. S. 1889, Sec. 1411.

SEC. 5. Proceedings, by whom heard.—The proceedings hereinafter provided for may be heard by the circuit court in term time, or by a judge thereof in vacation, and a complete record thereof shall be kept in either case. [R. S. 1889, Sec. 1412.

SEC. 6. Notice of time for assessing damages, etc.--When the mayor or other city officer shall file a certified copy of said ordinance in the circuit court or with the clerk thereof, such court or judge thereof shall fix a day and place for assessing the damages and benefits to arise from the proposed grading, and shall make an order reciting the ordinance, and said order shall be directed to all persons whom it may concern, without naming them, notifying them of the place and the day fixed for the ascertaining of damages and benefits to arise from such grading. A copy of such order shall be published in each issue of some newspaper of general circulation printed and published in the city, for two successive weeks, the last insertion to be not more than one week prior to the date so fixed for said hearing; said cause may be continued or postponed from time to time No notice of said proceedings shall be necessary except as herein provided, and proof of publication of such order may be made by the affidavit of any editor or person connected with the newspaper. On or before the day set for the hearing, any person claiming

damages by reason of the proposed grading may file or cause to be filed with the clerk of said court a description of the property claimed to be damaged, and the interest of the claimant therein. The clerk shall note the filing of every such claim as a part of the record in said cause. [R. S. 1889, Sec. 1413.

SEC. 7. Appointment of commissioners.-On the day set for the hearing, if the copy of the order has been duly published as herein required, the judge or court shall appoint and cause to be impaneled a board of six commissioners, who shall be disinterested freeholders, and allowed the same fees as jurors are allowed for their services. [R. S. 1889, Sec. 1414.

SEC. 8. Duties of Commissioners-verdict, what to contain. The commissioners provided for in the preceding section shall be sworn to ascertain and report the actual damages or just compensation to be paid in each case separately, as well as the benefits to be assessed under such instructions as shall, after hearing the parties, be given them by the judge or court. Parties interested may submit proof to the commissioners, and said commissioners shall examine, personally, each piece of property described on such map or plat, and all property claimed to be damaged by such proposed grading. The commissioners shall ascertain and state in their report or verdict: First, the amount of actual damages to each piece of private property that will be damaged by reason of the proposed grading, having due regard to, and making just allowance for, all benefits to such piece of property from such grading, and when the damages to any piece of property do not exceed the benefits thereto from the proposed improvement, the commissioners shall not report any allowance of damage to such piece; second, if the commissioners shall find that private property is actually damaged by reason of proposed improvement, to pay the total amount of such damages allowed, they shall first assess against the city such sum as is equal to the amount of benefit that the city at large will receive

from the proposed improvement, and the balance of the sum so awarded as damages, and not assessed against the city, the commissioners shall assess against private property, within the benefit limits prescribed in the ordinance, but excluding from such assessment any piece of private property to which damages are awarded on account of the proposed improvement, and no piece of private property shall be assessed with benefits in any amount in excess of the actual benefits which the same will receive by reason of the proposed improvement. If the commissioners cannot agree, the judge or court may discharge them, and may proceed to impanel another board, but the order to impanel a new board of commissioners must be made on the day of discharging any board of commissioners, and must name the time and place for impaneling a new board. [R. S. 1889, Sec. 1415.

SEC. 9. Verdict may be set aside, etc.—The verdict of the board of commissioners shall be signed by each commissioner, and delivered to the judge or court on the day fixed for such report, at the hearing of the matter, unless said commissioners are granted further time by the judge or court; said report or verdict shall contain a correct description of each lot or parcel of property damaged, the names of the claimants and the amount of damages thereto; also the amount of benefit assessed against the city, together with a correct description of each lot or parcel of private property assessed with benefit, and the amount assessed against the same. The city engineer, or if there be none, then the surveyor of the county, shall, when requested by the judge, put the verdict or report in proper form. The judge may, on his own motion or on the motion of the city, or any party interested in the proceeding, for good cause, set aside the verdict or report of any board of commissioners, and thereupon appoint a new board to perform the duties in this article prescribed, and fix a time and place for impaneling another board and a rehearing of the whole matter. The court costs, up to and including the judg

ment and the costs of publishing notice herein required, shall be paid by the city. [R. S. 1889, Sec. 1416.

SEC. 10. Judgment, proceedings to enforce.The verdict or report shall, unless set aside, be confirmed and judgment entered thereon, that the city pay the damages assessed therein, and that the city recover the respective amounts assessed against private property, and that the several lots or parcels of private property so assessed to pay compensation by the verdict or report stand severally charged and be bound for the payment of the respective assessments, also the interest and costs that may accrue thereon. Such judgment may be enforced by a special execution if the same is not paid, or as to the portion not paid. The judgment as to benefits assessed against private property shall bear interest at the rate of ten per cent per annum, unless appealed from, but in case of appeal, interest shall be charged only from date of affirmance of the judgment or dismissal of the appeal in the appellate court. The execution herein authorized shall be deemed sufficient if it recites the date of the judgment, the amount assessed against each tract described therein, and states that such tract or tracts were assessed to pay compensation for damage to private property, for grading of a street, alley or part thereof, as the case may be, giving the title and date of the approval of the ordinance ordering such grading, and command the officer to whom such execution is directed to sell each tract or parcel of property therein described, or so much thereof as may be necessary to satisfy the assessment, and interest and costs due thereon. [R. S. 1889, Sec. 1417.

SEC. 11. Appeals, when taken, etc.--Any party aggrieved by the judgment may take an appeal therefrom by filing such an affidavit as is required in appealing civil cases; however, such appeal shall be perfected within thirty days from the delivery of the verdict or report. In case of appeal, the judgment shall stand suspended until the appeal is disposed of. No writ of error shall be allowed. The clerk of

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