24-705. Duties of commissioners upon second reference of petition; assessments; report; remonstrances; hearing; modification, change and approval of report.
24-705
24-705. Duties of commissioners upon second reference of petition;assessments; report; remonstrances; hearing; modification, change andapproval of report.After the petition has been referred to the drainage commissioners forthe second time, with directions to proceed with the work and make theirfinal report, as provided in K.S.A. 24-702,the commissioners, in case there be no proceeding in error from thejudgment and order of the court, or in case the petition be sustained onerror, shall proceed accordingly and determine definitely the best andcheapest method of drainage, the route, location and character of theproposed work, and fix the same by metes and bounds, courses, distances,and description, grades and bench marks, including all necessary arms orbranches, so as to provide for complete drainage of all the lands to beaffected by the proposed work; divide the drain or ditch into sections,each not more than one hundred feet in length; compute and set out thenumber of cubic yards of excavation in each section; and assess thebenefits or damages, as the case may be, to each separate tract of landto be affected and to easements held by railroads or other corporations,as well as to cities, school districts, or other municipalities,including any land, rights, easements or water power injuriouslyaffected, and to make report to the court under oath, as directed. Thedrainage commissioners, in locating the line or lines of work ofdrainage, may vary from the line described in the petition as they maydeem best, and may fix the beginning or outlet so as to procure [secure]the best results; they may run the line so as to avoid all injurypossible to lands, easements, or public grounds, and so as to benefitpublic highways by using the earth excavated for roadbeds, or in anyother way they deem best: Provided, That in no case shall they sochange or construct the work as to sacrifice the object of drainage.They may determine that the method of drainage shall be by removingobstructions from a natural or artificial watercourse, or diverting suchwatercourse from its channel; by deepening, widening or changing thechannel of such watercourse; by constructing an artificial channel, withor without arms or branches; by providing that such drain shall be openor tiled and covered, or partly open and partly tiled, and dug byshovel, dredge, or otherwise; by constructing levees or dikes, or by anyor all of such methods combined: Provided, That such drain shallnot be located so close to any lake covering two acres or more of groundas to lower the water level of the lake, and shall at no point be nearerthan twenty rods to the high-water mark of such lake, except only wheresuch drain empties into such lake.
Upon the filing of such report, ten days, exclusive of the day offiling and of Sundays, shall be allowed to any person or corporationaffected by such drainage, or whose lands are assessed for benefits ordamages, to remonstrate in writing against the report, whichremonstrance shall be sworn to and made for any of the following causes:(1) That the report is not made according to law; (2) that the benefitsassessed against or damages assessed for any person or persons,corporation or corporations, are either too great or too small. Theright of remonstrance is preserved to all persons and corporationsaffected by said drainage, either on account of the manner in which thebenefits are assessed against or damages assessed for the remonstrant,or for or against any other person affected by the drainage.
It is the intention that any person affected by such drainage,feeling aggrieved by any part of said report, shall have the right ofremonstrance against the same. After the expiration of ten days from thefiling of such report the court shall, at its earliest convenience, hearand consider all remonstrances filed against said report, and if uponthe hearing, it being decided that the first of the abovenamed causes ofremonstrance is true, the court may direct the drainage commissioners toamend and perfect their report, or may, in its discretion, set aside thereport and refer the matter again to the commissioners for a new report.After making such order for the amendment of their report or for a newreport, the court shall fix the time and place for the meeting of thecommissioners and when they shall report; and when such amended reportor such new report is made and filed, any person or corporation affectedthereby, or whose lands are affected thereby, may remonstrate inwriting, within the time and for the causes in this section hereinbeforeprovided. If any remonstrance on account of erroneous or unfairassessment of benefits or damages shall be sustained, the court maymodify and equalize the assessments as justice may require, bydiminishing or increasing any assessment for benefits, or by giving orwithholding, increasing or diminishing damages. For the purpose ofhearing and determining all remonstrances and modifying assessments, allpersons or corporations who are shown by such report to be affected, orwhose lands are shown to be affected, or who are named in the petitionas affected, or who have appeared to the petition, or who have beenserved as provided for in K.S.A. 24-701, shallbe deemed to be in court for all purposes by reason of such appearance,or by virtue of the notice theretofore given them. The assessments ofbenefits and damages as made by the drainage commissioners in the finalreport, and as changed, equalized and confirmed by the court, shallstand and be adjudged valid. If there be no remonstrance, or if thefinding and judgment of the court be against all the remonstrances, orif the court shall have corrected and equalized the assessments ashereinbefore provided, it shall make an order approving the assessmentsas made by the drainage commissioners, or as modified and equalized bythe court, and shall declare the proposed work established.
History: L. 1907, ch. 197, § 3; L. 1909, ch. 128, § 1; March 25; R.S. 1923,24-705.