Subchapter VI. General Provisions
TITLE 7
Conservation
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
CHAPTER 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES
Subchapter VI. General Provisions
§ 4185. Payment of damages and compensation.
The damages and compensation awarded by the terms of the ditch order shall be paid to the person entitled thereto out of the first funds available to the tax ditch under this chapter, and no construction shall commence until said damages and compensation have been paid.
48 Del. Laws, c. 151, § 60; 7 Del. C. 1953, § 4185.;
§ 4186. Obstruction of or damage to tax ditch; civil and criminal liability.
(a) If any person wilfully or negligently obstructs or damages any part of a tax ditch, and upon request of the ditch managers fails to remove the obstruction or to repair the damage at the person's own expense, the ditch managers shall see that the obstruction is removed and that the damage is repaired.
(b) The person so obstructing or damaging the tax ditch shall be liable for all loss or injury caused thereby and the expenses or charges for remedying the same, and said loss or injury, expenses or charges may be sued for and recovered by the ditch managers in the name of the tax ditch before any justice of the peace in the county where the obstruction or damage occurred.
(c) Whoever wilfully obstructs or damages any part of a tax ditch, as specified in subsection (a) of this section, or wilfully interferes in any way with tax ditch operations as provided for in this chapter or in a ditch order made pursuant to this chapter, shall be fined not more than $100.
(d) As of July 17, 2008, if a permanent structure, whether existing or approved for construction, including but not limited to any residential, agricultural, or commercial structure, or any associated permanent accessory structure or septic system, driveway or parking area associated therewith still are found to be within a tax ditch right-of-way; that structure is exempt from the provisions of this chapter as a "legal nonconforming use".
48 Del. Laws, c. 151, § 61; 17 Del. C. 1953, § 4186; 50 Del. Laws, c. 276, § 33; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, § 43; 76 Del. Laws, c. 389, § 2.;
§ 4187. Right of entry upon lands.
The Division of Watershed Stewardship, engineering personnel hired under § 4142 of this title, the soil conservation district supervisors, the Department of Natural Resources and Environmental Control, the ditch commissioners, the ditch managers, or any of their employees or agents, may enter upon any lands within the tax ditch at all reasonable times in order to carry out the purpose of this chapter.
48 Del. Laws, c. 151, § 62; 7 Del. C. 1953, § 4187; 57 Del. Laws, c. 739, § 188; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 44; 77 Del. Laws, c. 430, § 27.;
§ 4188. Addition of territory to a tax ditch.
(a) Any landowner who desires his or her lands to be included within a tax ditch formed under this chapter, may present a petition for an amendment to the existing ditch order to include such lands, to the Superior Court of the county which issued said ditch order through the board of supervisors of the soil conservation district of the same county, and the procedure shall be substantially the same as method in subdivision (3) of § 4189 of this title, for amending a ditch order, except that, in addition to establishing an assessment base which will be the basis for all future ditch taxes, for each parcel of land being included within the tax ditch, a special assessment, based generally on the approximate total amount of taxes that would have been levied against such parcels of land since the tax ditch was formed, had such lands been within the original boundaries of said tax ditch and other considerations, shall be determined by the board of ditch commissioners and payment thereof prescribed in their report to the Superior Court.
(b) In those cases when any landowner, directly or indirectly, alters lands to utilize any part of a tax ditch to benefit land which is not within the original boundary of the tax ditch as established in the ditch order and which was not assessed as part of the tax ditch, or which was not assessed to the prong or part of the tax ditch utilized by the alteration, and when the landowner or owners have not secured an amendment to the ditch order in accordance with the procedure set forth in subsection (a) of this section, it shall be assumed that such landowner accepts the liability for payment of a special assessment and costs incurred in processing an amendment to the ditch order, in addition to all future ditch taxes, and it shall be the duty of the ditch managers in the name of the tax ditch to present a petition for an amendment to the existing ditch order to include such lands, in the same manner as set forth in subsection (a) of this section and the procedure shall be the same as outlined in that subsection, except that estimated costs of processing the amendment shall be added to the special assessment which will be established by the board of ditch commissioners.
(c) In those cases when any landowner desires his or her lands to be included within a tax ditch and when agreement can be reached on the part of the landowner and the tax ditch managers as to the special assessment to be paid and the assessment base to be established as the basis for all future ditch taxes, then method (1) or method (2) of § 4189 of this title may be used to add the additional territory to the tax ditch.
48 Del. Laws, c. 151, § 64; 7 Del. C. 1953, § 4188; 50 Del. Laws, c. 276, § 34; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, § 45.;
§ 4189. Alteration of tax ditches; amendments to ditch orders.
If it becomes necessary to change any part of a tax ditch, such changes may be made in one of the following ways:
(1) The desired or required changes, justified in writing and including any necessary maps or drawings, shall be presented by the tax ditch managers to the taxables at a regularly called tax ditch meeting. If a majority vote of the taxables present favors the changes, and providing that such changes do not include any relocations of works of improvement, or of the construction area, or of the maintenance right-of-way on the lands of any owner without the owner's consent, the tax ditch managers shall present 3 copies of their request for the changes, including the written justification and any necessary maps or drawings, and also including the results of the referendum, to the Division of Watershed Stewardship for its approval. Should that approval be given, the change shall be effective at once, and the Division of Watershed Stewardship shall file the original request with supporting papers in the office of the Prothonotary of the proper county, and return 1 copy to the tax ditch. Whenever changes are made which affect the tax ditch assessment list, the Division of Watershed Stewardship shall notify the board of assessment of the proper county of such changes.
(2)a. When all landowners affected consent to changes of any part of a tax ditch, including the assessment list, they shall enter into a written agreement to make such changes and present 3 copies of such agreement, together with any necessary maps or drawings, to the Division of Watershed Stewardship for its approval. Should that approval be given, the change shall be effective at once, and the Division of Watershed Stewardship shall file the original request with supporting papers in the office of the Prothonotary of the proper county, and return 1 copy to the tax ditch. Whenever changes are made which affect the tax ditch assessment list, the Division of Watershed Stewardship shall notify the board of assessment of the proper county of such changes.
b. The Division of Watershed Stewardship shall be responsible for assuring that any change to a court order to a tax ditch or right-of-way pursuant to this chapter shall be recorded in the Prothonotary's Office. The landowner of any property upon which a change to a court order has been made to any tax ditch or right-of-way pursuant to this chapter shall be responsible for assuring that such change is filed with the Recorder of Deeds in the county or counties where the parcel subject to the right-of-way is located.
(3) Any landowner within the boundaries of a tax ditch, or the tax ditch managers in the name of said tax ditch, may, at any time, petition for the amendments of the ditch order that created the tax ditch. Such petition shall list the changes that are desired and shall be presented to the Superior Court that issued the tax ditch order through the board of supervisors of the soil conservation district of the same county. That board of supervisors shall require and handle a deposit from the petitioners in accordance with § 4120 of this title, so far as that section is applicable. As soon as the deposit is received, the board of supervisors shall file the petition in the office of the Prothonotary of the proper county without further investigation. Upon the filing of a petition for amendments to a ditch order in the office of the Prothonotary of a county, the board of ditch commissioners of such county, shall, at the direction of the resident judge thereof, go upon the lands of the tax ditch watershed, if necessary, review the existing ditch order, consider the changes requested and make determinations regarding these. The board of ditch commissioners shall obtain from the county soil conservation district such assistance and information as may be required. The board of ditch commissioners, with the assistance of the Division of Watershed Stewardship, shall prepare a special proposed report in the nature of 1 or more proposed amendments to the existing ditch order, together with any maps or drawings deemed necessary. Upon completion of that report, they shall give notice, and hold a hearing and referendum in accordance with §§ 4131 and 4132 of this title so far as these are applicable. After holding the hearing and supervising the referendum, the board of ditch commissioners shall file the original and 2 copies of its report in the office of the Prothonotary of the county in which all the major portion of the tax ditch is located and shall attach to the report a certificate showing the results of the referendum and the place where, and the time when, it was held. The board of ditch commissioners shall also prepare and attach to the report a statement showing:
a. The board of ditch commissioners has fully discharged the duties assigned to it as prescribed by law.
b. Any objections made to the report of the board of ditch commissioners which did not warrant further changes in the report and the reasons therefor.
c. Any other recommendations or information which the board of ditch commissioners deems advisable including their determination as to whether the petitioners or the tax ditch are liable for the costs of this action.
Action by the Superior Court shall follow §§ 4136, 4137, 4138, 4139, 4140, 4141 of this title so far as these sections are applicable.
48 Del. Laws, c. 151, § 65; 7 Del. C. 1953, § 4189; 50 Del. Laws, c. 276, § 35; 57 Del. Laws, c. 739, § 189; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §§ 46-50; 76 Del. Laws, c. 389, § 3; 77 Del. Laws, c. 430, § 28.;
§ 4190. Bridges and culverts.
If any public road crossed by any part of a tax ditch will be benefited so that the public should construct and maintain a bridge or culvert at such crossing, the board of ditch commissioners shall so state in their report and upon establishment of the tax ditch such bridges or culverts shall be constructed and maintained at the public charge from funds provided for that purpose.
48 Del. Laws, c. 151, § 66; 7 Del. C. 1953, § 4190.;
§ 4191. Ditches near highways.
The Department of Transportation shall maintain the highway drainage system insofar as is possible in such manner as to prevent silt from such system from obstructing any part of a tax ditch. If silt enters from the highway system and obstructs a tax ditch the Department of Transportation shall remove the same within a reasonable time after being given notice of such obstruction by the ditch managers.
48 Del. Laws, c. 151, § 67; 7 Del. C. 1953, § 4191; 60 Del. Laws, c. 503, § 21.;
§ 4192. Dissolution of tax ditch.
After a duly called meeting of the taxables at which a majority of all eligible votes have been cast in favor of dissolving a tax ditch, created under this chapter, the ditch managers shall prepare a petition requesting such dissolution to the Superior Court through the appropriate county soil conservation district. If the tax ditch has operated for at least 10 years, and if said district is of the opinion that the dissolution of such tax ditch is in the public interest, it shall file the petition therefor, together with the recommendations of said district in the office of the Prothonotary of the county in which the original ditch order was issued. After a petition for dissolution has been so filed, the Superior Court shall issue an order dissolving the tax ditch. No such order of dissolution shall be issued unless and until all obligations of the tax ditch have been paid in full and all commitments of the tax ditch have been fulfilled.
48 Del. Laws, c. 151, § 68; 7 Del. C. 1953, § 4192.;
§ 4193. Ditches in Kent County; transfer by Department of Transportation to tax ditch.
If any landowners in Kent County establish a tax ditch under this chapter, the Department of Transportation shall transfer to the tax ditch all its right, title and interest in and to any existing ditch or ditches, within the boundaries of the new tax ditch, which have previously been transferred to the Department under § 28 of Chapter 105 of the 1935 Revised Code of Delaware, and the Department shall delegate to the new tax ditch all its powers and duties in connection with the existing ditch or ditches.
48 Del. Laws, c. 151, § 70; 7 Del. C. 1953, § 4193; 60 Del. Laws, c. 503, § 21.;
§ 4194. Appropriations to Department of Natural Resources and Environmental Control.
An appropriation to the Department of Natural Resources and Environmental Control for purposes of planning, designing and constructing tax ditches/public group ditches shall be included in the annual appropriation bill (budget bill) of the General Assembly.
48 Del. Laws, c. 151, § 74; 7 Del. C. 1953, § 4194; 57 Del. Laws, c. 739, § 190; 67 Del. Laws, c. 359, § 1.;
§ 4195. Notice of right-of-way, or assessment.
(a) The Department of Natural Resources and Environmental Control shall certify and file with the prothonotary of each county a list of all parcels by county tax parcel numbers and all owners of said parcels of real property located in that county which are subject to any portion of a right-of-way or assessment as part of a tax ditch created by this chapter. The list shall be in alphabetical order by owner. The Department shall also certify and similarly file a list of any changes of parcel numbers subject to such right-of-way or assessment annually. Additionally, the Department shall certify and similarly file a list of any addition or deletion of a parcel or parcels subject to a right-of-way or assessment immediately upon making any such addition or deletion.
(b) No later than 180 days after complying with subsection (a) of this section the Department shall certify and file with the prothonotary of each county a list of all parcels by county tax parcel numbers and all owners of said parcels listed in alphabetical order and designating which parcels are subject to a right-of-way and assessment, and which parcels are subject only to an assessment.
(c) The certified list submitted pursuant to subsection (a) or (b) of this section shall be confirmed by order of the Resident Judge of Superior Court for each county, which order shall:
(1) State the name of the tax ditch;
(2) State the owner's name(s) and that owner's county tax parcel number for each parcel subject to the right-of-way and assessment and each parcel subject to an assessment only; and
(3) Direct that the order be recorded in the Office of the Recorder of Deeds in and for that county.
(d) There shall be no charge or fee to file the list required by subsection (a) of this section.
(e) There shall be no charge or fee to record the order pursuant to this subsection.
75 Del. Laws, c. 321, § 1.;