243.120. Exceptions to report--appeal to circuit court--procedure--new notice to be published, form.
Exceptions to report--appeal to circuit court--procedure--newnotice to be published, form.
243.120. 1. The attorney for the drainage district or any owner of landor other property in said district, may file exceptions to said report withinten days after the last day of publication of the notice provided for insection 243.110. All exceptions shall be heard by the county commission anddetermined in a summary manner so as to carry out liberally the purposes andneeds of the district, and if it appears to the satisfaction of the countycommission, after having heard and determined all of said exceptions, that theestimated cost of constructing the proposed improvement is less than thebenefits assessed against the land and other property in said district, thenthe county commission shall approve and confirm said viewers' report as somodified and amended.
2. The county commission shall adjudge and apportion the costs incurredby the exceptions filed and shall condemn any land or other property, withinor without the boundary lines of the district, that is shown by the report ofthe viewers to be needed for rights-of-way, holding basins and other works, orthat may be needed for material to be used in constructing said works,following, as nearly as possible, the procedure that is now provided for bylaw for the appropriation of land and other property taken for telegraph,telephone and railroad rights-of-way.
3. The price of the land and other property taken for rights-of-way andother use of the district and the damage to each piece of land and otherproperty shall be paid in cash to the owner thereof and no drainage districtshall have the right to enter upon or appropriate any land or other propertysought to be acquired until the prices awarded to the owners of such landshall have been paid to such owners or into the commission organizing thedistrict for the use of such owners; and if the sums awarded be not so paidwithin five years from the date of final confirmation of the viewers' report,all proceedings as to the taking of such property for rights-of-way, and otherworks not so paid for, shall abate at the cost of the district. Whenever anyland is acquired by any district under the provision of this chapter and theprice of such property has been paid the owner by the district, the title,use, possession and enjoyment of such property shall pass from the owner andbe vested in the district, and subject to its use, profit, employment andfinal disposition.
4. Any person may appeal to the circuit court from the judgment of thecounty commission, and upon such appeal there may be determined either or bothof the following questions:
(1) Whether just compensation has been allowed for propertyappropriated; and
(2) Whether proper damages have been allowed for property prejudiciallyaffected by the improvements.
5. The court shall grant the appeal if the appellant shall, before theend of the term of the county commission and within ten days from the date ofthe order appealed from, file a written application for an appeal, specifyingtherein the matters appealed from, verified by affidavit as in appeals takenfrom judgments of circuit courts, and the application shall be recorded uponthe record of the county commission.
6. The county commission shall then fix the amount of the bond to begiven by the appellant and cause an entry thereof to be made upon its record.The party appealing shall within ten days thereafter file with the clerk abond payable to the drainage district in the amount fixed by the countycommission, with at least two good and sufficient freehold sureties, to beapproved by the county commission, or in vacation, by the clerk, conditionedto pay all costs on the appeal in case the appellant fail to sustain the same,or the appeal be for any reason dismissed; and within ten days from the dateof filing said bond the said clerk shall make and certify a transcript of theproceedings had before the county commission relating to the land of appellantand involved in the appeal, and file the same, together with all originalpapers relating to the proceedings, on file in his office, in the office ofthe clerk of the circuit court; provided, that nothing in this section shallbe so construed as to authorize any appellant to stay the proceedings in thecounty commission, or to prevent progress in the work of constructing any workor improvement; but said county commission may proceed with said work, and anysubsequent proceedings in the circuit court shall affect only the rights andinterests of the appellant in property located in such district. The countycommission may, if it deems advisable, refer the report back to the viewers,with or without directions for correction or amendment in any particular, inwhich event a new notice shall be given in the manner and for the timeprovided in section 243.110, which notice shall be substantially in thefollowing form:
NOTICE OF FILING OF AMENDED REPORT OF
VIEWERS AND ENGINEER IN DRAINAGE
DISTRICT NO. ......... OF .........
COUNTY, MISSOURI.
Notice is hereby given to all persons interested in drainage district No. ......... of ......... County, Missouri, that on the ......... day of........., 20........., the viewers and engineer of said drainage districtrefiled their report, together with modifications and amendments, and you andeach of you are hereby notified that you may examine said report and fileexceptions to all or any part thereof.
...........................
Clerk of the county commission of ......... County, Missouri.
7. Exceptions to an amended report may be filed in like time and manner,as in the case of filing the original report, and the proceedings thereaftershall be the same as in the case of the report in the first instance.
(RSMo 1939 § 12409)Prior revisions: 1929 § 10820; 1919 § 4488; 1909 § 5592