EMINENT DOMAIN.

DRAINAGE OF MINES.

LAWS 1867, P. 39 (EXTRA SESSION).

FEBRUARY 21, 1867.

AN ACT relative to mining for lead ore or other minerals.

SECTION 1. Be it enacted, etc., That every corporation, company, association of persons or other party now engaged in mining for lead ore or other minerals, or which may hereafter be engaged in operating or mining for lead ore or other minerals, whenever it is necessary for the purpose of prosecuting such mining enterprise to conduct or convey the water from any shaft, levels or land occupied by them for mining purposes, shall have the right and privilege of conducting and conveying the water therefrom, upon, over or below the surface of the lands of any owner or owners of lands adjoining or adjacent to the grounds so worked or to be used for mining purposes by such corporation, company, association of persons or other party, in pipes, ditches, water races or tunnels, and to deposit waste earth from their said mines, thereby doing as little damage or injury to the owner or owners of adjoining lands or the improvement thereon as the same will admit of, with the privilege of extending said pipes, ditches, water races or tunnels as far over adjacent lands as may be necessary to obtain a proper outlet for the water, upon complying with the provisions of this act.

SEC. 2. Whenever such corporation, company or other party can not agree with the owner or owners of such adjoining lands upon the amount of damages for the right and privilege of conveying the water from any shaft, level or mining land aforesaid, such corporation, company or association of persons, or other party, may apply to the judge of the county court of the county where the land is situated for the appointment of three commissioners, to assess such damage. The judge of said county court, upon such application being made, shall appoint three disinterested freeholders, residents of his county, to act as commissioners, who, after being duly sworn for that purpose, shall proceed to make an examination of all the lands necessary and proper to be used by said company, corporation, association of persons, or other property in conducting or conveying the water from such shaft, level or mineral lands, and for depositing waste earth, as aforesaid, and also for such lands as may be overflowed or liable to overflow by reason of erecting, constructing and maintaining such pipes, ditches, tunnels or the keeping up and maintaining water-races upon said lands, and make an award, in writing, in which they shall award to the owner or owners of such land or lands the amount of damages to which such owner or owners of said land or lands shall be entitled, by reason of use of lands for waste earth and for the erection, construction and maintaining such pipes, ditches, tunnels or water-race, or that may be erected and maintained for the purpose of conveying the water from the same.

SEC. 3. Said commissioners shall meet within thirty days from the time of their appointment to make their examination and award, by virtue of this act, and shall have power to adjourn, from time to time, not exceeding two adjournments in all; and the owner or owners of such land shall be notified to 5

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appear before them, at the time and place of such meeting, and shall be entitled to be heard before said commissioners in regard to the amount of damages by them sustained or liable to be sustained in consequence of the erecting, making and maintaining of such pipes, ditches, tunnels or water-races, and depositing waste earth, as aforesaid. Such notice shall, at least six days before such meeting, be served personally or by leaving a copy thereof at the residence of the owner or owners of such land aforesaid: Provided, Such owner or owners reside in the county where said lands are situated; and in case such owner or owners are nonresidents of the county, then such notice shall be served upon their attorney or agent, if they have any in such county, and if there is no such agent or attorney in the county then such notice shall be published in a newspaper printed in said county for at least three weeks before the meeting of said commissioners.

SEC. 4. The decision and award of said commissioners shall be final, unless appealed from as provided for in this act; and the said award, together with due proof of the notice or notices upon the owner or owners of said land, or upon their attorney or agent, as provided for in this act, shall be filed in the office of the clerk of the circuit court of the county wherein the award is made, shall be prima facie evidence of the regularity of said proceedings, and at the next term of the circuit court of the proper county, upon motion made by any party interested therein, a judgment may be entered up and execution issued to the same effect and in the same manner as judgments are entered, executions issued upon actions of civil nature commenced and tried in the circuit court.

SEC. 5. Any corporation, company, association of persons, or other party considering themselves aggrieved by the award of said commissioners, may appeal therefrom, within twenty days from the time of filing said award, to the circuit court of the proper county, in the same manner as is provided by law for appeals from judgments of a justice of the peace. Said commissioners shall be entitled to receive two dollars per day, each, for their services as such commissioners, which shall be paid by such corporation, company or party.

SEC. 6. And it is hereby expressly provided, that the pipes, ditches, and water-races or tunnels laid, excavated or constructed by virtue of the provisions of this act, shall, under no circumstances, be used by the owners of the lands through which they may be laid or constructed or by any other person or persons, for any purpose whatsoever other than the drainage of the lands; and no person or persons whatsoever shall be authorized to enter the same, except for the purpose of repairing, altering, extending or otherwise improving the same, without the written consent of the parties interested first had and obtained.

SEC. 7. This act shall take effect and be in force from and after its passage.

DRAINS AND ROADS.

REVISED STATUTES (HURD) 1874, P. 709.

AN ACT To revise the law in relation to mines.

MARCH 24, 1874.

NOTE. The Revised Statutes of 1874 were prepared by a Commission appointed by the Legislature, and were issued and known as Hurd's Revised Statutes.

SEC. 1.-MAKING DRAINS, ROADS OR RAILROADS-EMINENT DOMAIN.-Be it enacted, etc. That whenever any mine or mining place shall be so situated that it can not be conveniently worked without a road or railroad thereto, or ditch to drain the same or to convey water thereto, and such road, railroad or ditch

shall necessarily pass over, through or under other land owned or occupied by others, the owner or operator of any such mine or mining place may enter upon such lands, and construct such road, railroad or ditch, upon complying with the law in relation to the exercise of the right of eminent domain.

PUBLIC AND PRIVATE WAYS-HORSE AND DUMMY RAILROAD.-And the commissioners of highways of any county under township organization, and the county board in counties not under township organization, may, when the public good requires, cause to be laid out and opened public highways, or private roads or cartways, from any coal mine to a public highway or to a railway, as the public good may require, in the same way as now is or may hereafter be provided by law for the laying out and opening of public highways or private roads or cartways, and may permit the owner, lessee or operator of any coal mine to lay down and operate a horse or dummy railway thereon, or upon any highway or private road or cartway now or hereafter laid out and opened for public or public and private use, but always in such a manner and way, and upon such place thereon, as to not unnecessarily interfere with ordinary public travel.

DRAINING COAL MINE.

LAWS 1877, P. 95.

MAY 16, 1877.

AN ACT To protect, by levee, lands subject to overflow and for draining wet or swamp land and coal mines.

SECTION 1. PETITION.-Be it enacted, etc.: That when any one or more owner or owners or occupants of any lands, or coal mines, in the State, shall desire to construct a ditch or drain or ditches across the lands of another or others, for agriculture, sanitary or mining purposes, or for all or any one of said purposes, and which tends to the benefit or advantage of the public, and no agreement or arrangement can be made between them and the owners or occupants of said land to make or establish the ditch or drain, the person or persons may then file a petition in the circuit or county court of the county in which said ditch or ditches, drain or drains, shall be proposed to be constructed, setting forth the necessity for the same, with the description of its or their proposed starting point, route and terminus, and if it shall be necessary for the drainage of the land, or coal mine, or for sanitary purposes, or either or all of said purposes, that a drain, ditch or levee, or other similar work, be constructed, and to the public interest that the work shall be so constructed, the petitioner or petitioners shall so state in the petition and shall set forth the general description of the same as proposed, and shall ask for the condemnation of so much of the lands as may be sufficient to construct and build said ditch or ditches, drain or drains, levee or levees.

SEC. 2. DRAIN OR DITCH-HOW CONSTRUCTED.--If the petition is for the draining of any coal mine or mines, or for draining wet land, and It is practicable for the ditch or drain to be made under the surface of the ground and to the advantage of the owner, and it shall be so required in writing by the owner or occupant of the land over which the same shall be constructed, then the person or persons so constructing such drain or ditch shall so construct and build the same by laying piping or boxing made of substantial and good material, in a good and substantial manner a sufficient distance under the surface of the ground to avoid obstruction or inconvenience to the owner or occupant of the land; but if it can not be so done, or is unnecessary, then sald drain or ditch may be erected upon the surface of the ground, doing as little injury to the owner or occupant as possible.

SEC. 3. COMPENSATION FOR PROPERTY TAKEN.-Private property shall not be taken or damages for the purpose of erecting such ditch, drain or levee without

just compensation if claimed by the owner or occupants, and said compensation shall be ascertained by a jury as hereinafter provided; but if such ditch, drain or levee shall be of benefit to the lands over which it shall be constructed, then the benefits and advantages shall be a set off against compensation that may be claimed by the owner or occupants of such land; but no benefits or advantages shall be set off against the value of the land actually taken. (Repealed by Act June 27, 1885, Laws 1885, 78, p. 108.)

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CONSTRUCTION OF DRAINS AND LEVEES.

LAWS 1879, P. 120.

MAY 29, 1879.

AN ACT to provide for the construction, reparation and protection of Drains, Ditches and Levees, across the lands of others, for agricultural, sanitary and mining purposes, and to provide for the organization of Drainage Districts.

SECTION 1. DRAINAGE DISTRICTS.-Be it enacted, etc.: That drainage districts may be organized and established as hereinafter provided.

SEC. 2. PETITION.-Whenever a majority of the owners of lands, within a district proposed to be organized, who shall have arrived at lawful, and who represent one-third (3) in area of the lands to be reclaimed or benefited, desire to construct a drain or drains, ditch or ditches, levee or levees or other work, across the lands of others for agricultural, sanitary or mining purposes, or to maintain and keep in repair any such drain or drains, ditch or ditches, levee or levees heretofore constructed under any law of this State, such owners may file, in the county court of any county in which the greater part of the lands to be affected by said drain or drains, ditch or ditches, levee or levees, or other work proposed to be constructed, maintained or repaired, shall lie, a petition signed by a majority of the owners of said lands, within said district, proposed to be organized as aforesaid, setting forth the proposed name of said drainage district, the necessity of the same, with a description of its or their proposed starting points, route and terminus, and a general description of the lands proposed to be affected, with the names of the owners, when known.

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SEC. 5. HEARING-FINDINGS OF COURT-COMMISSIONERS.-On the hearing of any petition filed, and if it shall further appear to the court that the proposed drain or drains, ditch or ditches, levee or other works is, or are necessary or will be useful for the drainage of the lands proposed to be drained thereby for agricultural, sanitary or mining purposes, the court shall so find, and appoint three disinterested persons as commissioners to lay out and construct such proposed work.

AMENDATORY ACT, 1885.

LAWS 1885, P. 109.

JUNE 30, 1885. AN ACT to revise and amend an act, and certain sections thereof, entitled "An act, etc. (same as in section 1).

SECTION 1. Be it enacted, etc.: That the sections herein named of an act entitled "An act to provide for the construction, reparation and protection of drains, ditches and leeves across the lands of others for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts,"

approved and in force May 29, 1879, as amended,

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be and the same are

hereby revised and amended, that is to say, that sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26, of said act, to which this act is an amendment, be and each of them is hereby so amended, as to read in their numerical order as follows:

SEC. 2. Whenever a majority of the owners of lands within a district proposed to be organized, who shall have arrived at lawful age and who represent onethird (4) in area of the lands to be reclaimed or benefited, desire to construct a drain or drains, ditch or ditches, levee or levees, or other work to be known in this act as a "drainage and levee district," or "drainage and levee work," across the lands of others, for agricultural, sanitary and mining purposes, or to maintain and keep in repair any such drain or drains, ditch or ditches, levee or levees, heretofore constructed under any law of this State, or to establish in said district a combined system of drainage or protection from overflow, independent of levees, for agricultural, sanitary or mining purposes, and maintain the same by special assessments upon the property benefited thereby, such owners may file, in the county court of any county in which the greater part of the lands to be affected by said drain or drains, ditch or ditches, levee or levees, or other work proposed to be constructed, maintained or repaired shall lie, a petition signed by a majority of the owners of said lands, within said district proposed to be organized as aforesaid, setting forth the proposed name of said drainage district, the necessity of the same, with a description of proposed starting points, route and terminus of the work and a general description of the lands proposed to be affected, with the names of the owners when known, and, if the purpose of said owners is the repair and maintenance of a ditch or ditches, levee or levees, or other work, heretofore constructed under any law of this State, said petition shall give a general description of the same, with such particulars as may be deemed important, and may pray for the organization of a drainage district, by the name and boundaries proposed, and for the appointment of commissioners for the execution of such proposed work according to the provisions of this act:

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SEC. 5. On the hearing of any petition filed under the provisions of this chapter, ** and if it shall further appear to the court that the proposed drain or drains, ditch or ditches, levee or other works, is or are necessary, or will be useful for the drainage of the lands proposed to be drained thereby, for agricultural, sanitary or mining purposes, the court shall so find, and appoint three (3) competent persons as commissioners, each of whom shall hold his office until his successor is appointed as hereinafter provided, to lay out and construct such proposed work.

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