24-702. Hearing and proceedings on the petition; notice; commissioners, bonds, oath and duties; remonstrance by landowners; appeal to supreme court, time.
24-702
24-702. Hearing and proceedings on the petition; notice; commissioners,bonds, oath and duties; remonstrance by landowners; appeal to supreme court,time.(a) Upon the filing of the petition for drainage, as provided in K.S.A. 24-701,and amendments thereto, in the office of the clerk of the district court, theclerk shall enter a minute of the filing of such petition in the civilappearance docket of the court and shall fix a time for the hearing of suchpetition by the court, which shall not be less than 45 days nor more than 60days after the filing of such petition. The clerk shall issue a notice directedto all persons, corporations and municipalities named in the petition asoccupants or owners of lands, easements or other property to be affected bysuch drainage, other than the petitioners themselves, which notice shall bewritten or printed, and shall set forth the route of the proposed drain, asdescribed in the petition, the fact of the filing and pendency of the petition,and the time when such petition will be heard.
(b) The notice, when issued by the clerk, shall be delivered tothe sheriff of the county, and it shall be the duty of the sheriff tocause to be published in some newspaper printed and published in thecounty in which such drain is proposed to be established a copy ofthe notice, which notice shall be published and proof of publication madein the same manner as is provided by law for the publication of summons fornonresident defendants in civil action, the first publication of such notice tobe at least 41 days prior to the day fixed for the hearing of such petition.All persons appearing at the hearing of such petition, and all persons,corporations or municipalities named in the notice published shall thereafterbe deemed to have notice of all steps taken in such proceedings. If it appearsto the court, at the time fixed for the hearing of such petition, that thepublication has been given, the court shall consider such petition and hear anydemurrer or written objection to the sufficiency of the petition offered by anyperson named in such petition, or by any other person who shall satisfy thecourt, by such showing as the court may require, that such person has aninterest that will be affected by such drainage. All questions arising at thehearing of such petition shall be heard and determined by the court.
(c) If the court finds the petition defective, the same may be amended, byleave or order of the court, and if not so amended may be dismissed at the costof the petitioner or petitioners. If, upon the hearing of such petition, thecourt finds and determines such petition to be sufficient, the court shallappoint two discreet citizens of the county, who, together with a civilengineer, who need not be a resident of the county, also to be appointed by thecourt, shall be commissioners to manage, control and conduct such proposeddrainage, and shall fix a bond to be given by such commissioners, in such sumas the court may deem requisite, and such petition shall be referred to suchcommissioners for their action thereon. Before entering upon their duties assuch commissioners, they shall give a joint and several bond to the state ofKansas in the sum fixed by the court, with one or more good and sufficientsureties thereon, to be approved by the judge of the court, conditioned for thefaithful performance of their duties as such commissioners, and that they willfaithfully account for and pay over all moneys that may come into their handsas such commissioners, and shall take and subscribe an oath before the clerk ofthe court that they will support the constitution of the United States and theconstitution of the state of Kansas, and faithfully perform the duties ofcommissioners of drainage in such proceeding, and obey and perform all of theorders and directions of the court made therein. All objections to the petitionor to any drainage commissioner not made before the reference of the petitionto the drainage commissioners shall be deemed waived.
(d) The court shall have the power in the interest of justice to adjournthe hearing of such petition from time to time, in order that all personsinterested may have an opportunity to be heard before the reference of suchpetition to the drainage commissioners. In the order of the court appointingsuch drainage commissioners, the court shall fix a time and place for themeeting of the drainage commissioners, and a time when they shall file theirpreliminary report. The clerk shall deliver to the commissioners a certifiedcopy of the petition and of the order of their appointment, and they shall meetaccordingly. The drainage commissioners shall make a personal inspection of theland described in the petition, and of all other lands likely to be affected bythe proposed work. The commissioner who is an engineer shall make the necessarysurveys for the purpose of ascertaining the facts from which to make theirreport, and such commissioners shall, within a reasonable time allowed andfixed by the court, make to the court a preliminary report in which suchcommissioners shall show:
(1) The source or head and general direction and outlet of the drainand of each arm or branch thereof, and average width and the depth, whatpart is to be opened and what part is to be tiled, if any, and whetherit is to be dug by shovel, dredge or otherwise.
(2) A description of all lands which will be affected by the proposeddrainage, with the names and residence of the owners, if known, and if not, sostating; also the name of any city, school district or other public corporationor highway or street not named in the petition which will be affected by suchdrainage.
(3) Whether such drainage is practicable and will be sufficientproperly to drain the lands to be affected.
(4) Whether, when accomplished, the proposed drainage will improve thepublic health, benefit any public highway or grounds in the county, or anystreet or public grounds of any city therein, or be of public utility.
(e) Such report of the drainage commissioners, in all subsequentproceedings, shall be prima facie evidence of the facts therein stated. In caseany lands not named in the petition and not owned by any person who hasappeared in the petition are named in the second item of such preliminaryreport of the commissioners, notice of such report, setting out the substancethereof, shall be issued by the clerk, and shall be served and published by thesheriff in the same manner as provided for notice of the hearing of thepetition. Any petitioner, landowner, corporation or municipality named in thepetition, or who has appeared thereto, shall have 20 days from the filing ofsuch preliminary report within which to file any exceptions thereto. Anylandowner not named in the petition and whose lands are not described therein,but who is named in such report and lands therein described, and any city,school district or other municipality so brought in, shall have the same timefor filing exceptions to such preliminary report as is required to be given ofthe time and place of the hearing of the petition.
(f) If the court, on examination of the preliminary report of thecommissioners, finds that such drainage is not practicable, and will not besufficient to properly drain the lands to be affected by it, or that it willnot improve the public health, nor benefit any public highway or grounds in thecounty, or streets or public ground in any city, or be of public utility, or if2/3 of the landowners affected, as shown by such preliminary report, within 20days after the filing of such report, remonstrates against the construction ofsuch proposed drain, the petition shall be dismissed. The court shall enterjudgment against the petitioner or petitioners for all costs and expenses,including all compensation of the drainage commissioners. But if the courtfinds affirmatively as to each of such items, and if no remonstrance signed by2/3 of the persons to be affected by such drainage is filed, the court shallrefer the petition back to the drainage commissioners, with directions toproceed with the work and make their final report, as provided in K.S.A.24-705, and amendments thereto. Such order and judgment of the court indismissing the petition or in referring it back to the drainage commissionersfor a final report, and of prior rulings and orders of the court in relation tosuch drainage, shall be conclusive, unless proceedings in error be prosecutedtherefrom to the supreme court, as hereinafter provided. Any person,corporation or municipality who is aggrieved by such judgment or dismissal ororder of reference, or by any prior ruling or order of the court, may at thetime of the ruling of the court on the preliminary report of the commissionersprosecute proceedings in error to the supreme court for the purpose ofreversing any judgment, order or ruling of the court by which the party mayfeel aggrieved, by filing a written notice of such appeal within three daysafter the final order of the court made on the hearing of the preliminaryreport, and by filing with the clerk of the court, within 30 days thereafter, abond, the amount to be fixed by the order of the court, or of the judge invacation, conditioned that such person prosecuting error will pay all costs,expenses, damages and loss occasioned by such party proceeding in error, and byperfecting such party proceedings in error by filing in the supreme court suchparty's petition in error, with a case-made or transcript of the record thereofattached, within 90 days after the rendition of the judgment and the order ofthe court upon the hearing of the preliminary report of the commissioners.
(g) All parties affected by such proceedings shall take notice of suchproceeding in error and be bound thereby, and all proceedings in the matter ofsuch drainage shall be stayed until the determination of such proceeding inerror. The rule of procedure for extending time for making a case, forsuggesting amendments thereto and for settling and signing the same shall bethe same as in ordinary civil actions. No appeal from the judgment or orders ofthe court made upon the hearing of the preliminary report of the commissionersshall be taken unless the same shall be perfected within 90 days after suchjudgment or order, but upon perfecting such proceeding in error, all previousorders and rulings of the court, made at any time in the proceedings, may bereviewed.
History: L. 1907, ch. 197, § 2; L. 1909, ch. 129, § 2; L. 1911,ch. 171, § 1; R.S. 1923, 24-702; L. 1992, ch. 314, § 5; July 1.