§ 156-43. Incorporation of canal already constructed; commissioners; reports.
§ 156‑43. Incorporation of canal already constructed; commissioners; reports.
Whenever the proprietors of any canal already cut shall desire tobecome incorporated, any number of the proprietors, not less than one third innumber, may file their petition before the clerk of the superior court of thecounty in which the canal is located, or in either county, where the canal maybe located in more than one county, setting forth the names of the proprietors,the length and size of the canal, the names of the owners of land draining insuch canal, and the quantity of land tributary thereto. And upon filing thepetition, summons shall issue to all parties having an easement in the canal,returnable as in other special proceedings; upon the return thereof, or upon aday fixed by the clerk for hearing same, all owners of the canal may becomecorporators therein, and upon failure of any to avail themselves of that right,they shall not be entitled to become corporators, except under such bylaws andregulations as such corporation shall make and declare. But those who fail toavail themselves of the benefit of this Subchapter shall not be deprived of their easement in the canal, but shall enjoy the same upon payment to thecorporation of the assessment made upon them pro rata with the corporators;such assessment shall be made on the land tributary to the canal andapportioned pro rata to each owner thereof; it shall be made by the corporationon 10 days' notice to each owner of the land, under such rules and regulationsas the bylaws may prescribe; but any person dissatisfied therewith shall havethe right to appeal to a jury at the regular term of the superior court of thecounty, and the amount of damages assessed shall be a first lien on the land ofthe owner against whom judgment shall be rendered.
Upon the return date of the summons or on the hearing by the clerk asprovided in this section, the clerk of the court may appoint three persons ascommissioners, who having been duly sworn shall examine the premises andinquire and report:
(1) The route and plan of the canal, including the breadth,depth and slope as nearly as they can be calculated, with all other particularsnecessary for calculating the cost of enlarging and improving said canal.
(2) The probable cost of the improvement and enlargement ofsaid canal.
(3) The proportion which each proprietor or corporator ought inequity and justice to pay toward the enlargement, improvement and permanentsupport and upkeep of said canal.
(4) With their report they shall return a map explaining asaccurately as may be, the various matters required and necessary in aid orexplanation of their report.
(5) The said report shall be heard and determined as otherreports in special proceedings, and if approved by the clerk, such proprietorsshall become a body corporate or a corporation.
(6) A meeting of the corporators may be called by the clerk ofcourt or by any corporator or proprietor who is a petitioner in the proceeding,and at such meeting a president, vice‑ president, secretary and treasurershall be elected from the proprietors or corporators who are petitioners; andalso a board of directors shall be elected from the proprietors or corporatorswho are petitioners in the proceeding.
(7) The board of directors shall assess the sum or amount whichshall be paid by each proprietor or corporator in conformity and compliancewith the report of the commissioners on which the corporation was based. Whensaid assessments against said proprietors or corporators and their landsaffected are duly certified to the clerk of the superior court of the county inwhich said proceeding was pending and instituted, the same shall be passed uponby the clerk of court, and when approved by the clerk, said assessments shallbecome judgments against the several proprietors or corporators so assessed,and the same shall be liens on the lands of the owners or corporators againstwhom said assessments were made and judgments entered, subject only to taxes,but said judgments shall be judgments in rem only. The board of directors willalso, if they deem it proper, fix and prescribe the time, manner and mode ofpayment. (1889, c. 380;1901, c. 670; Rev., s. 4008; C.S., s. 5301; 1939, c. 180, s. 2.)