Land owner must keep free of obstructions

ditches on his

premises.

How person injured by

accomplish its removal.

[House. Bill No. 149.]

AN ACT

To provide for the cleaning out and keeping in repair of public ditches, drains and water courses, and to repeal an act passed April 13, 1900, entitled "An act to provide for the cleaning out and keeping in repair of public ditches, drains and water courses, and to repeal sections 4496, 4497, 4497a, 4498, 4553, 4554, 4555, 4556, 4584-1, 4584-2, 4584-3, 4584-4, 4584-5, 4584-6, 4584-7, 4581-8, 4584-9, 4584-10. 4584-11, 4584-12, and 4584-13 of the Revised Statutes of Ohio."

Be it enacted by the General Assembly of the State of Ohio: SECTION I. That every person or corporation through whose lands any public ditch improvement is constructed, shall be required to keep the same open, free, and clear of all obstructions upon his or its premises, and in case of a failure so to do shall be liable to pay all reasonable and necessary expenses of removing such obstructions; a perobstructions may son or corporation aggrieved by any such obstruction may make a sworn statement of the facts to the county auditor, who shall at once appoint a competent person to examine the premises, and inquire into the truth of the statement, who shall proceed without delay to do the same, and, if he find the statement to be true, he shall immediately notify the owner of the land on which such obstruction exists to remove the same within a reasonable time, not exceeding twenty days; and if the owner so notified fail to remove the obstruction, the person appointed by the auditor to make the examination shall at once cause the same to be removed, at the expense of such owner, and certify such Expense of re- expense to the auditor, who shall place the same, together with all fees and other expenses in the case, on the duplicate, as an assessment upon the lands of such person or corporation, and the same shall be a lien upon such lands, and shall be collected as other taxes.

moval to be assessed against land.

Upon application commis

sioners shall have a hearing as to necessity of causing ditch to be cleaned.

SECTION 2. When any county ditch needs to be cleaned out, any owner of any tract or lot of land which was assessed for its original construction may make an application in writing to the county commissioners setting forth the necessity therefor and there shall be filed with such application a bond payable to the state of Ohio, with one or more sureties thereon, to the satisfaction of said county commissioners, in the sum of one hundred dollars, conditioned for the payment of all costs if the prayer of such applicant be not granted; and upon the approval of such bond the commissioners shall fix. a day when they will meet at the beginning point of said ditch, within not less than ten days nor more than twenty days, and enter the same on their journal, and the said petitioner shall then give at least three days' written notice to all persons interested, of the time and place, when and where said county commissioners will meet and hear said application, and they may adjourn the hearing from day to day or to such time as necessity may require.

as

shall be ac

ception.

SECTION 3. Provided, however, that when a ditch Procedure, in needs to be cleaned out, any resident owner of any tract a resident case applicant of land which was assessed for the construction may make owner. a sworn statement to the county auditor, in writing, setting forth such necessity. And when said written sworn statement is made within three years from the original construction, or for material improvement by deepening and widening said ditch, and as often thereafter may be necessary to keep said ditch in good repair, said county auditor shall forthwith notify the county surveyor to examine the said ditch, who shall go without unnecessary delay, upon the line thereof, and make an estimate of the amount of money required therefor and fix the portion thereof that the owner of said tract of land and each corporation, county or township assessed for the construction of the ditch, shall be assessed for such cleaning out; and Assessments such assessment shall be made according to the benefits; cording to unless the necessity for the cleaning out arose from the benefits; exact or neglect of some landowner or corporation, in which case such act or neglect shall be considered. Said county surveyor shall return his estimate and assessment to said auditor in writing, who shall appoint a day for hearing the same, and direct said county surveyor to give notice thereof to each owner of land and corporation affected thereby when said auditor may make such changes therein as he may deem right and proper; he shall enter upon a journal to be kept for that purpose the assessment as approved by him and he shall place such assessment upon the duplicate against the land, upon which they are assessed, to be collected as other taxes; the work of cleaning out the ditch Contract to be shall be advertised, sold and let, and the contracts therefor performed, as provided in this chapter; the contractor shall be paid, by warrant of the county auditor upon the county treasurer, out of the assessments so made, and paid upon the certificates of said county surveyor, that he has performed his contract; but if at the presentation of any certificate all the assessment have not been paid, payments shall be made thereon pro rata.

SECTION 4. On the day named in said order, the county commissioners shall meet at the time and place named therein, and determine by actual view of the said ditch and the premises along and adjacent thereto, whether the said ditch shall be cleaned out; and any person interested in said ditch may at that time file with the said county commissioners, a petition asking for the tiling of the whole or any part of said ditch, and the county commissioners shall at the same time hear the said petition and may order the whole or any part thereof tiled and prescribe the dimensions of such tile, and they shall make their report in writing and enter the same upon their journal, and if they find that the said ditch does not need to be cleaned out, then they shall dismiss said application at the cost of the applicant and order the county auditor to collect the costs and expenses thereof by suit upon said

let after advertisement.

Proceedings

of commissioners upon

hearing protion 2.

vided in sec

Duty of township trustees as to

ship ditches.

bond if the same is not paid within twenty days from the date of said order; and if the county commissioners find that said ditch or any part thereof needs to be cleaned out, they shall by an order entered on their journal, appoint the county surveyor to go upon the line of said ditch and furnish him with the original specifications of said ditch, and fix the time when he shall file his report with the county auditor. The examiner, so appointed, shall, after being sworn, examine and reapportion the costs of cleaning the same out according to its original capacity, together with the costs of tiling the same if so ordered by the county commissioners, among all the parties benefited thereby, unless he shall find that the necessity for cleaning out has occurred by the act or neglect of any landowner along the line of said ditch, in which case such an act or neglect shall be considered; and he shall make a report of his proceedings to the county commissioners on or before the day so fixed by them, and on the day so fixed by them, the county commissioners shall meet at their office and hear any and all exceptions filed to said report; and if the county commissioners find that said report is fair and just, they shall approve and confirm the same, and if they find that the same is unfair and unjust, they shall amend the same so as to make the same fair and just, and then approve and confirm the same, and shall, after having approved and confirmed the same, enter the same upon their journal, and the county auditor shall place the same upon the tax duplicate against the lands upon which they were assessed to be collected as other taxes, and said county commissioners shall then order the said surveyor or engineer to proceed to sell the work of cleaning the same out in sections bounded by farm lines, at public auction to the lowest bidder, and said surveyor shall fix the time in which each section shall be completed, and shall take a bond with good and sufficient surety, to be approved by him for the faithful performance of such contract, and when the whole of said work is completed, he shall make a report thereof to the county commissioners, who shall approve of the same, and the contractor shall be paid on the warrant of the county auditor on the county treasurer, out of the assessments so made and paid upon the certificate of such surveyor, that he has performed his contract, but if at the presentation of any certificate, all assessments have not been made, payments shall be made thereon pro rata. Said examiner shall return to the county commissioners an itemized statement of all expenses incurred in the cleaning out of said ditch, including the sum of $4.00 per day for his services, and $1.50 per day for all necessary help.

SECTION 5. It shall be the duty of the trustees of each township to examine all township ditches within their cleaning town- respective townships once in every two years as to the necessity of cleaning the same out, and if after such examination they deem it necessary that any such ditch or ditches need cleaning, they shall make an estimate of the amount

of labor, and the cost of cleaning out of said ditch or ditches, and fix the portion thereof that the owner or owners of each lot or tract of land, and each corporation assessed for the construction of said ditch or ditches, shall be assessed for such cleaning out, and such assessment shall be made according to benefits to accrue to each landowner interested as near as practicable, unless the necessity for such cleaning out arose from the act or neglect of any landowner or corporation, in which case such act or neglect shall be considered, and the assessment of said landowner or corporation proportionately increased.

fore such trustees.

after decision.

SECTION 6. Such trustees shall return their estimate Hearing heand assessment, with such facts as they may deem necessary to a full understanding of the case, to the township, clerk in writing, within ten days, and shall at the time of making such report, fix a time for hearing the claim or claims of those interested. The clerk, upon receipt of such report, shall cause the same to be entered in full upon the township record, and shall also make an entry of the time fixed for the hearing, and shall forthwith notify the owner or owners of each tract of land or his agent, so far as their residence may be known to said clerk, of the time and place fixed for said hearing, which notice shall also contain a written or printed copy of the estimate of said trustees. At the time fixed for hearing the parties interested in such proposed cleaning out; the trustees may make such changes therein as they deem just and equitable. After such hearing, if they are of the opinion that there is no necessity for cleaning out said ditch, they shall dismiss the application Proceedings and assess the cost thereof to the applicant, but if they are of the opinion that it is necessary to clean out said ditch, then they shall make a final order, which shall be entered upon their record, that said ditch be cleaned out, and that all the dirt, mud and other substances that have accumulated therein, since its original construction, be removed and cleaned out down to the solid earth, and so that the water will have a free and uninterrupted flow, specifying by whom the same shall be cleaned out, and the portion thereof each shall clean out, and the amount of the assessment upon each tract or parcel of land interested in sach improvement, and they shall cause the township clerk to forthwith notify the owner or owners of each tract of land, or his or their agent, or agents, so far as their residence is known to the clerk, to clean said ditch as ordered, and directed by the trustees, within thirty days, unless for good cause shown, the trustees extend the time; but in case the residence of the owner or owners of any such tract of land, or his agent, is unknown to the clerk, he shall cause to be posted up in at least three of the most public places in the township or townships in which said ditch is located, written or printed notices of the order of the trustees and of the time fixed for cleaning out such ditch. The trustees and clerk shall be entitled to receive the same fees in proceedings for cleaning out ditches as now al

lowed for similar services in the original construction thereof, to be paid by the party or parties whose act or neglect caused the necessity for such cleaning out, in such proportion as the trustees deem just and equitable, and the collection thereof shall be enforced in the same manner as provided for the collection of costs and assessments in proceedings for the construction of ditches by township

trustees.

SECTION 7. Every person or corporation through whose lands any ditch improvement is constructed, shall be required to keep the same open, free and clear of all obstructions upon his or its premises, and in case of failure so to do, shall be liable to pay all reasonable expenses of removing such obstructions: a person or corporation aggrieved by any such obstruction may make a sworn statement of the facts to the township trustees, who shall at once appoint one of their number to examine the premises, and inquire into the truth of the statement, who shall proceed without delay to do the same, and if he find the statement to be true, he shall immediately notify the owner of the land upon which such obstruction exists to remove the same within a reasonable time, not exceeding twenty days; and if the owner so notified fails to remove the obstruction, the trustee appointed to make the examination shall at once cause the same to be removed at the expense of such owner or owners, and certify such expense to the auditor, who shall place the same, together with all fees and other expenses in the case, on the duplicate, as an assessment upon the lands of such person or corporation, and the same shall be a lien upon such lands, and shall be collected as other

taxes.

SECTION 8. Immediately after the expiration of thirty days, or such other time as has been granted or extended to any person for the completion of the work aforesaid, the trustees shall appoint one of their number to examine the ditch and determine whether it has been cleaned out and repaired as directed and ordered by the trustees, and if the ditch has been so cleaned out and repaired the parties interested shall be discharged from further obligation, other than the payment of their portion of the costs and expenses under said application; but if on examination any of the parties who have been notified have not cleaned out and repaired such ditch, or their portion thereof ordered by the trustees and directed in the notice, the trustees shall immediately proceed to sell said cleaning out or repairing of such ditch or portion thereof to the lowest bidder, in the manner provided for selling unfinished sections of ditches; and thereafter the same proceedings shall be had in relation thereto, so far as applicable, provided in section fortyfive hundred and forty-seven.

SECTION 9. The county commissioners of any county in this state shall have power to clean out any ditch, drain or water course within their respective counties, if said ditch, drain or water course has been located, established