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TITLE 9. propositions in relation to any of the public works. [1847, ch. 278, $ 13.]
Locks to be * rebuilt
$75. When it becomes necessary to rebuild any of the locks when neces on the Oswego canal, it shall be the duty of the canal commissioners to have such locks constructed of the same dimensions as the enlarged locks on the Erie canal; and for the purpose of ascertaining the increase of expense beyond the cost of reconstructing the locks on the old plan, the canal commissioners shall cause accurate estimates to be made of the cost of rebuilding the lock of the present dimensions, and also the cost of constructing the enlarged lock, and such addition shall be paid out of the moneys appropriated by this act; but in no event shall all such locks be enlarged until one tier of enlarged locks on the Erie canal shall be completed from Syracuse to Buffalo, nor shall any of the locks upon the Oswego canal be rebuilt, until such rebuilding shall be rendered necessary by the failure of those now in use. [1847, ch. 262.]
Canal commissioners to take eharge of
$76. The canal commissioners are hereby authorized and required to take charge of so much of the navigable waters of the portion of Cayuga inlet, as are now subject to canal tolls, and to exercise the same power and supervision over them as they are by law authorized and required to exercise over other canals of this state; and shall cause to be removed such obstructions therefrom, and make such improvements therein, as may from time to time be necessary to preserve and keep the channel of said inlet of sufficient depth and capacity to admit the passage of any boats or water craft which may navigate the Erie canal. [1852, ch. 246, § 1.]
Erie. Oswego, Cayuga canals, to be
$77. The canal commissioners are hereby authorized and and Seneca required to adopt immediate measures to bottom out the narrow bottomed and crooked portions of the Erie, Oswego, and Cayuga and Seneca canals, so as to admit of the passage of boats of the enlarged size, at the earliest possible period, drawing three and one-half feet of water. [1854, ch. 16, § 1.]
Surveys to be made for extending Genesee
*S78. The state engineer and surveyor and canal commissioners are hereby directed to cause surveys to be made for extending valley canal the Genesee Valley canal, from or near the first lock, northeast of the village of Olean, across and through the bottom lands lying between said lock and the Allegany river, to the pond in said river known as the Millgrove pond, and to make the necessary plans and estimates of the cost of the construction of said canal, by the route and to the point aforesaid, and shall submit such surveys, plans and estimates to the next legislature during the first week of its session. [1856, ch. 149, § 1.]
ed in Seneca
$79. The canal commissioners are hereby directed and required, after the excavation of the canal and river in the first to be erect- section of this act mentioned is completed and time given to see lake. the effect thereof on the water in said lake, to ascertain and determine a point in said lake to which the water thereof shall be allowed to discharge itself in the ordinary way, and be there holden for use, without injury to the rights of the owners of land at the head of and on the shore of said lake. Said commissioners shall cause one or more permanent monuments to be erected in said lake at the point so ascertained, and which said point shall be
distinctly marked thereon, and shall cause levels to be taken to permanent objects on the shore of said lake, and a record of the same to be made by which said point may be hereafter known. The point so determined and marked shall be the limit to which the waters from said lake shall be permitted to flow and discharge themselves to waste; and it shall be the duty of the said canal Duty of commissioners, whenever and as often as water of said lake ioners. shall have subsided to the point so marked and determined, hold the same there for use; and said commissioners shall make · and maintain such works as shall be necessary to effect that object. But nothing in this act shall be so construed as to authorize or permit the state dam at Waterloo to be raised above its present height. [1857, ch. 479, § 2.]
Of the Appraisement of Damages.
SEC. 80. Number of canal appraisers; to take oath.
81. Their terms of office.
82. To appraise value of private property appropriated to public purposes. 83. To meet in vicinity of premises, and hear evidence.
84. Claimants, when and how to apply; consequence of neglect.
85 & 86. Duties of appraisers; to examine and hear testimony.
87. To notify the canal commissioner in charge, of time and place of meeting.
88. One of the canal commissioners to attend; if necessary to employ counsel.
89. Decision of the appraisers.
90. Claims for former damages, when to be exhibited.
91. Every decision of appraisers to be entered in a book kept for purpose.
92. Appraisers to enter the claims, allowances and items not allowed, with the reasons of their decision.
93. A transcript of the entry signed to be recorded in the clerk's office where the lands lie. 94. Books in which the entries are made to be kept in their apartment.
95. Fee simple of premises appropriated, vested in the state.
96. When damages appraised exceed benefits, commissioners to pay excess; in case of appeal, not to pay until final decision on the appraisement is had.
97. In case of a lien on the lands, the damages may be deposited in bank, to be paid on direction of the supreme court to the proper parties.
98. Commissioners, engineer, or superintendent of repairs, may fix, by agreement, amount of damages in certain cases.
99. Damages for lands used for temporary purposes.
100 Proceedings in such cases.
101. Lands divided by canals to be taken for the state in certain cases.
102. Damages in such cases to be appraised as in other cases.
103, 104. Damages for lands overflowed.
105. Pay of appraisers.
106. Appeal from decision of appraisers to the canal board.
107. The appeal to be in writing, stating the grounds, &c.; how served.
108 Canal appraisers to file transcripts of their decision within 30 days; appeal must be brought within three months thereafter.
109. Return to the appeal to be made in writing.
110. Canal board to meet to decide appeals: how heard and decided.
111. To make certificate; commissioners to pay amount certified.
112. Payment, or offer to pay amount, to discharge commissioners from any further liability.
113. When party claiming damages to pay costs of proceedings, and when commissioners. 114. Canal commissioners and appraisers may issue subpoenas.
115. Their form.
119. Certiorari to supreme court from canal appraisers' award.
120. When it may be brought.
121. Not to prevent an appeal to the canal board.
122. Canal commissioners not to be associated with appraisers on appraisals.
123. Appraisers to make an annual report to the legislature; its contents.
124. The books, records and papers in relation to canal appraisals to be kept in their charge. 125. Allowance to the appraisers for clerk hire.
126. In case the appraisers appraise land for the enlargement of the Erie canal above its fair value, it shall not be taken.
127. If a purchase cannot be made of it at a fair price, the canal to be deepened and widened within the land originally appropriated.
128. In such cases no boats to stop or land freight or passengers there.
129. Auditor, before payment of damages, &c., to be furnished with certificate of title.
130. No person entitled to a farm bridge across canals, when its necessity, &c., has arisen from acquisition of property subsequent to location of canal.
131. Certain laws in relation to bridges over Erie canal applicable to bridges over Oswego and other canals.
132. No street or road bridges to be constructed over canals, except upon streets, &c., used previous to construction of canals.
133. Inconsistent laws repealed.
TITLE 9. * 80. There shall be nominated by the governor, and appointed Three ap by him, with the consent of the senate, three officers by the name be appoint of canal appraisers, who shall hold their offices for [three] two years and until their successors shall be duly qualified. [1836, ch. 287.]1
od. Bee § 81.
*581. The three canal appraisers to be appointed next after the passage of this act shall hold office as follows: one for the term of one year, one for the term of two years, and one for the term of three years, pursuant to the following determination: the commissioners of the canal fund shall meet at the capitol within ten days after such appointment shall be made, and determine by lot, which of said appraisers shall hold his office for one year, which for two years, and which for three years; and the terms of office of such appraisers shall respectively expire as the same shall so be determined by lot, a certificate of which determination shall be filed by said commissioners of the canal fund forthwith in the office of the secretary of state; and there shall be appointed annually thereafter, one canal appraiser in the manner now provided by law whose term of office shall be for three years. [1857, ch. 538, § 1.]
$82. [Sec. 46.] When any lands, waters or streams, appropri3 Kern., 244. ated by the canal commissioners, to the use of the public, shall not be given or granted to the state, it shall be the duty of the appraisers to make a just and equitable estimate and appraisement of the damages, and benefits resulting to the persons interested in the premises so appropriated, from the construction of the work, for the purpose of making which, such premises shall have been taken.2
To meet, &c.
when to apply.
9 Barb., 496;
$83. [Sec. 47.] It shall be their duty, for that purpose, to meet at such times and places as they may deem necessary, and as nearly in the vicinity of the premises, as conveniently may be, and hear such proper and relevant evidence as shall be offered; and they are, for that purpose, empowered to administer oaths to witnesses.
S84. [Sec. 48.] Every person interested in premises so approfor future priated, if he intend to make any claim for damages, shall, within one year after such premises shall have been taken for the use of the state, exhibit to the appraisers a statement of his claim, in 15 ib., 627 writing, signed by himself, his guardian or agent, and specifying 4 Comstock, the nature and extent of his interest in the premises appropriated, and the amount of damages; and every person refusing or neglecting to exhibit such claim, within the time prescribed, shall be deemed to have surrendered to the state his interest in the premises so appropriated.
$85. It shall be the duty of each of the appraisers to attend the meetings to be held for the appraisal of damages; but any two of them may perform any of the duties required of appraisers of damages, provided that the decision and determination on each claim, shall be concurred in by at least two of the appraisers. [1836, ch. 287, § 9.]
*$86. It shall be the duty of the canal appraisers personally to duty of ap- view the premises on which damages shall be claimed, and to meet
1 Substituted for § 45, R. S. 2 Laws of 1817, p. 302, § 3.
at such times and places as they may deem necessary, and as nearly in the vicinity of the premises as conveniently may be, and hear such proper and relevant evidence as shall be offered, and direct the attendance of witnesses in behalf of the state, if in their opinion the interest of the state shall require it, and they are for that purpose empowered to administer oaths to witnesses; and willful false swearing before the said appraisers, is hereby declared perjury. [1829, ch. 368, 1.]
S 87. It shall be the duty of the canal appraisers to notify the acting canal commissioner in charge of the line of canal on which appraisers. damages are to be appraised, of the time and place of the meeting of the appraisers, to view the premises and take testimony in relation to such appraisals. [1836, ch. 287, § 4.]
* § 88. It shall be the duty of one of the acting canal commis- Hearing sioners, in person or by agent, to attend in behalf of the state, before damages. the canal appraisers, and procure or request the attendance and examination of witnesses on the part of the state, and if in the opinion of the canal appraisers, the interests of the state require it, they may employ counsel on behalf of the state, on the hearing of claims for damages before them. [Same ch., § 5, as amended 1855, ch. 535, § 4.]
*$ 89. It shall be the duty of the canal appraisers to decide upon Decision to claims for damages, from the information obtained by them in viewing the premises, and from the evidence, if any, received by them from witnesses. [1836, ch. 287, § 6.]
643; 1 Kern.,
$90. [Sec. 49.] No claim for damages, for premises that shall Former have been appropriated to the use of a canal, at any time before 15 Barb., this chapter shall be in force, shall be received by the appraisers, 308. unless it shall be exhibited within one year after this chapter shall become a law; and the premises so appropriated shall be deemed the property of the state; and no claims, other than those so exhibited, shall be paid without the special direction of the legislature. $91. [Sec. 50.] A regular entry of every determination and ap- Deestored. praisement made by the appraisers, certified and signed by the appraisers making it, and containing an apt and sufficient description of the premises so appropriated, the names of the persons interested, and the sums estimated to each, for benefits and damages, shall be made in a book kept for that purpose, by the canal commissioners.1
*S 92. It shall be their duty to enter in a book to be kept for Claims to be that purpose, the nature and extent of all claims on which they a book. shall pass, the items on which allowances are made, and the several amounts allowed, and the items on which no allowance is made; and they shall enter at length the testimony taken, and the grounds and reason for their decision. [1829, ch. 368, § 2.]
$93. [Sec. 51.] A transcript of every such entry, signed by the Copy appraisers, shall be recorded in the clerk's office of each county in 3 Kern., which the premises appropriated shall, in whole or in part, be situated. [As modified 1855, ch. 535, § 2.]
S94. It shall be their duty to deposit the books and papers in Books and
1 Laws of 1817, p. 302, § 3.
papers to be: deposited..
TITLE 9 relation to the appraisal of damages, when not required to be used by them in the discharge of their duties as appraisers, in [the apartment of the canal appraisers.] [1836, ch. 287, § 7, as modified 1849, ch. 352, § 6.]
Right of the state.
15 Barb., 643.
Payment for damages
Amount of award for
$95. [Sec. 52.] The fee simple of all premises so appropriated, in relation to which such estimate and appraisement shall have been made and recorded, shall be vested in the people of this
$96. [Sec. 53.] If the damages so estimated and appraised shall exceed the benefits, it shall be the duty of the canal commissioners to pay the amount of such excess of the damages, to the persons appearing, by the determination of the appraisers, to be thereto entitled; but no such payment shall be made, where an appeal or writ of error shall be prosecuted by the canal commissioners, until a final decision on the appraisement shall have been had.2
*S 97. When any damages shall have been awarded by the damages to canal appraisers, or settled by the canal board, for appropriating ed in bank. any lands, streams or waters, to the use of any canal, and it shall appear that there is any mortgage, judgment, or other lien or incumbrance upon the property appropriated, the commissioners of the canal fund may in their discretion deposit the amount so awarded or settled, in any bank selected for the deposit of canal revenues, to the account of such award, to be paid and distributed to the parties entitled to the same, as shall be ordered by the supreme court on the application of the said parties, or any of them. [1841, ch. 160, § 5, as modified 1847, ch. 280, § 16.]
$98. [Sec. 58.] When damages shall be claimed by the owner settled by of agreement. any land which the canal commissioners shall have occupied for temporary purposes, or on which they shall have entered for the purpose of obtaining materials for repairs, the acting commissioner on the line of the canal nearest to which the land shall be situate, or any engineer or superintendent of repairs authorized by him, may fix by agreement the amount of damages which such owner ought to receive.3
to be used
$99. When damages shall be claimed by the owner of any Lands, &c., lands, waters or streams, which the canal commissioners shall have for tempo occupied for temporary purposes, in the construction or improverary purpo- ment of any state canal, or other works connected therewith, or on which they shall have entered for the purpose of obtaining materials for the construction or improvement of such canal, or other works connected therewith, such damages, if not settled by agreement, shall be appraised by the canal appraisers. [1836, ch. 287, § 10.]
*S100. The proceedings in relation to the appraisal of such damages, shall be in all respects the same as the proceedings in relation to the appraisal of damages for lands, streams or waters, appropriated by the canal commissioners to the use of the public, except that no transcript of such appraisal shall be recorded in the clerk's office of any county. [1836, ch. 287, § 11.]
1 Laws of 1817, p. 302, § 3. 2 Laws of 1827, p. 230, § 43. Laws of 1820, p. 183, § 3.